Ontario Power Generation Inc. v Society of United Professionals

IN THE MATTER OF AN ARBITRATION

(Under the Labour Relations Act, 1995)

BETWEEN:

ONTARIO POWER GENERATION INC.

-AND-

(“OPG”)

THE SOCIETY OF UNITED PROFESSIONALS

(“Society”)

AND IN THE MATTER OF an arbitration of a Society Policy Grievance OPGI-2021-

673/2886 regarding the use of “Rotations” under Article 65 of the collective agreement

between the parties.

BEFORE: G. T. SURDYKOWSKI – Sole Arbitrator

APPEARANCES:

For OPG: William J. Hayter, Counsel; Nicholas Mandic, Human Resources; Travis

Savoie, Human Resources; Karl Pavasars, RG&PWRMRKT; Elinor D’Cunha,

RG&PWRMRKT; Jennifer Blakely, Human Resources.

For the Society: Kathryn Bell, Labour Relations Staff Officer; Joseph Fierro, Local Vice-

President; Jim Mastorakos; Unit Director.

Zoom hearing held on September 1, 2021 and January 12, 2022.

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INDEX – by page number

I.

WHAT THIS CASE IS ABOUT………………………………………………….3

PROCESS…………………………………………………………………………3

FACTS – References to individuals by surname only for ease of exposition.)…...3

THE COLLECTIVE AGREEMENT……………………………………………16

SUBMISSIONS – Summarized

II.

III.

IV.

V.

(a)

The Society………………………………………………………………16

(b)

OPG……………………………………………………………………...20

VI.

DECISION……………………………………………………………………….25

(a)

(b)

Principles of Collective Agreement Interpretation and Application…….25

The Bloch and Mitchell Awards Require Consideration………………...27

(i)

(ii)

Bloch Awards…………………………………………………….27

Mitchell Award…………………………………………………..30

(c)

The Collective Agreement Interpretation and Application……………...35

(i)

(ii)

(iii)

The Society’s Complaint…………………………………………35

The Operation of Article 65……………………………………...36

Application to the Society’s Complaint

(a) Summary Dispositions……………………………………….46

(b) Disposition of Specific Issues Raised By the Parties………..47

(d)

Result…………………………………………………………………….55

APPENDIX A – Text of Grievance……………………………………………………...58

APPENDIX B – Collective Agreement Provisions……………………………………...59

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AWARD

I.

WHAT THIS CASE IS ABOUT

The text of the Society’s “Statement of Policy Grievance” is set out in full in

1.

Appendix A (page 57). In summary, the grievance alleges that OPG has violated Article

65 of the collective agreement by improperly using rotational and other short-term

assignments in the Market Day Ahead & Real Time Operations Group. The Society

alleges that OPG has violated Articles 65.2 and 65.5.2 of the collective agreement by

improperly using rotations to staff ongoing MP-4 positions, and has violated Articles 65.3

and 65.6.1 by improperly using what it refers to as “Non-Base Assignments” (“NBAs”)

to “step-up” employees in MP-4 and MP-5 positions into vacant MP-5 and MP-6

positions.

2.

OPG denies the allegations and submits that the grievance should be dismissed.

PROCESS

II.

3.

The parties filed Hearing Briefs which significantly expedited the hearing (but not

the time it took to write this Award). OPG also called one witness: Elinor D’Cunha,

Director Commercial Operations since 2019. D’Cunha is responsible for the Market Day

Ahead & Real Time Operations Group. This Group consists of two teams: The Day

Ahead Team, and the Real Time Operations Team.

III.

FACTS – References to individuals by surname only for ease of exposition.)

4.

The Society does not dispute the facts asserted by OPG in its Hearing Brief or

testified to by D’Cunha to any material extent.

5. The Day Ahead Team works days, Monday to Friday. As its title suggests, it is

responsible for forecasting and preparing for all forms of OPG’s next day and week

ahead power generation requirements with a view to ensuring power grid stability and

reliability, and maximizing revenue.

6.

The Real Time Operations Team works on a 24/7 basis in a Control Room

previously and often still referred to as the “PMC”. The Real Time Operations Team

constantly monitors the power grid in real-time to ensure that power is available when

and where it is needed. The Team monitors power generation market conditions and the

activities of other power generators in the marketplace. It adjusts the Day Ahead Team’s

plan as required and offers OPG power on a price per megawatt basis to the Independent

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Electricity System Operator (“IESO”) which manages Ontario’s power system on a real-

time hourly basis.

7.

8.

The focus of this case is on the Real Time Operations Team.

The standard bargaining unit Real Time Operations Team complement is 18

employees distributed over 6 crews. Five crews work rotating day and night shifts, and

the 6th (commonly referred to as the “G Crew”) is a day shift crew. The normal 3-

employee complement of each crew consists of one MP-4 Coordinator, one MP-5

Specialist, and one MP-6 Supervisor. The Coordinator’s function is logistical, primarily

with respect to start and stop times for nuclear and other non-hydroelectric generation.

The Specialist focuses on OPG’s more complex hydroelectric generation operations. The

Supervisor has overall crew responsibility, and is responsible for submitting OPG’s

hourly generation offers to the IESO and ensuring that the IESO’s dispatches match the

offers. The nature of the Real Time Operations Team function requires the 3 crew

positions to work together, which has the collateral effect of enabling learning and

development within the crew.

9.

OPG says and D’Cunha testified that the duties and responsibilities of the Real

Time Operations Team requires specialized knowledge and skill sets which don’t exist

and cannot be acquired elsewhere in OPG’s organization. D’Cunha says the MP-5

Specialist and MP-6 Supervisor positions require 4-6 months of on-the-job training and

experience, depending on the individual and the skill set they bring to the position, but

perhaps less so if they have previously been assigned to the Team.

10.

D’Cunha testified that OPG’s objective is to maintain the Real Time Operations

Team’s complement at 18, consisting of 6 employees in each of the MP-4 Coordinator,

MP-5 Specialist and MP-6 Supervisor shift positions. She acknowledges that this isn’t

always actually the case as employees move out of and into the Team, and that staffing

imbalances may occur, particularly between the MP-4 and MP-5 positions, as a result of

the ripple effect of permanent departures or temporary rotations out and backfilling

staffing gaps with rotations in or step-ups.

11.

D’Cunha spoke to the 2019, 2020 and 2021 Real Time Operations Team shift

schedule documentation included in Society Book of Documents, Ts 5, 6 and 7 (which

there is no dispute are historical documents that reflect the schedules worked as of

December 18, 2019, November 10, 2020 and August 17, 2021 respectively). She

described how the master schedule is created in or about the end November for the

following year, subject to change as required as the year goes on. A new version is

issued (only, I infer) if there is a departure from the Team. Otherwise changes are made

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“on the go” (as employees swap shifts or are absent due to illness, for example).

D’Cunha matched the names on the schedules to the MP-4 Coordinator, MP-5 Specialist,

and MP-6 Supervisor positions; and identified employees who rotated into the Team,

employees she referred to as “placeholder”, multi-purpose employees on standby not

assigned to but available to cover a shift if required, employees in training, and

employees who had rotated out but could be called in to cover a shift if needed. The

annual master schedule is emailed to “everyone” (presumably on or associated with the

Real Time Operations Team at the time) as well as to the Society Unit Director when it is

issued. Updated schedules are available and accessible to everyone on the Team, which

D’Cunha testified includes a Society Delegate (but not a Society Unit Director).

12.

Notwithstanding D’Cunha’s testimony that OPG seeks to maintain the Real Time

Operations Team staffing complement at 18, the Team schedules in evidence show a

monthly Team work roster complement varying between 20 in May-July and September-

December 2021 and 27 in January 2019. In 2019 the roster complement varied between

25 and 27; between 22 and 23 in 2020; and between 20 and 22 in 2021. The schedules

sometimes include employees who have rotated out to other assignments and sometimes

they do not. For example, Beard’s name remained on the schedule throughout

notwithstanding that she was on a rotation out of the bargaining unit from November

2019 through September 2020, and on another rotation out of the Team that began in late

September or early October 2020 and is scheduled to end in April 2023. Wong and Sauer

also remained on the schedules during parts of their rotations out of the Team until April

2021 (details below). I note that the 2019 schedules include a “placeholder” group of 5

employees in February, 4 in December, and 4 grouped with an MP-6 employee in

January and March-November. This “placeholder” grouping disappeared from the 2020

and 2021 schedules. This “placeholder” curiousity was left unexplained, but that doesn’t

matter for purposes of this Award.

13.

D’Cunha testified that if a permanent staffing gap arises (e.g. if a Team member

decides to retire), the resulting permanent vacancy is typically filled by way of a

permanent job posting at the MP-4 Coordinator level, regardless of which position left or

going to be left vacant as a result. This is so even if the departing employee is a MP-5

Specialist or a MP-6 Supervisor because Control Room employees are trained to the next

level up, so that MP-5 Specialists are trained to the MP-6 Supervisor level and MP-4

Coordinators are trained to the MP-5 Specialist level in order to provide flexibility and

absence coverage. D’Cunha testified that this “up-level” training provides flexibility

within the Team, reduces the danger that employees will become “stale”, and

accommodates and minimizes the disruption caused by vacations and other absences. It

also means that the most likely source of candidates to fill a vacant MP-5 Specialist or

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MP-6 Supervisor position is the Team itself. D’Dunha says an applicant for either

position from outside the Team could not function in the job without a “lot” of training.

14.

A staffing gap left by a permanently departed employee must typically be filled in

the interim. If the gap is at the MP-6 Supervisor level a MP-5 Specialist is temporarily

“stepped up” to fill it and a MP-4 Coordinator is stepped up to fill the gap left by the MP-

5 Specialist, leaving the MP-4 Coordinator gap to be filled. Stepped-up employees are

paid at the appropriate rate for the position they are stepped up to. Society

Supplementary Book of Documents Tab 4 summarizes 18 step-ups within the Real Time

Operations Team between May 2, 2019 and (it appears) Sept 8 or 9, 2021, and an OPG

“Step Up Assignments” document (filed notwithstanding OPG’s objection that post-

grievance evidence is irrelevant and therefore inadmissible) details and updates these18

step ups within the Real Time Operations Team to December 2021.

15.

The permanent position posting and selection process to fill a vacant MP-4

position generally takes several weeks to a month, following which the successful

applicant may not be released by the Unit they are coming from for up to 3 months

because all Departments/Units are resource challenged. Some 4-6 months of training may

then be required, depending on the employee’s skill set and previous training. D’Cunha

says it can take 9-12 months start-to-finish for the successful applicant for a posted MP-4

Coordinator position to be a fully functional member of the Real Time Operations Team.

The amount of time required may be less if successful applicant is from the broader

Market Day Ahead & Real Time Operations Group or has previously been in the Control

Room on a rotation assignment. (Such filling of an ongoing position with a rotation

assignment is one of the things the Society complains about). There typically remains a

temporary complement gap while the new MP-4 Coordinator is trained to the point that

they can do the job themselves.

16.

Temporary Real Time Operations Team complement gaps can also occur if a

Team member takes a rotation assignment outside of the Control Room. D’Cunha

testified that (in her opinion – by which I am not bound) a “rotation out” does not create a

permanent vacancy because the base position has to be maintained for the employee who

has rotated out to return to. Article 65.5.5 of the collective agreement provides that an

employee who accepts a rotation assignment within the Society’s bargaining unit has the

right to “will be given a guarantee by the sending unit that they can return to their

original position, if available, or to a comparable position normally with the sending

unit”. I note that although Article 5.1.3 provides that bargaining unit employees

temporarily assigned to perform work outside the bargaining unit continue to have “all

benefits, plans or entitlements” under the specified collective agreement provisions,

including Article 65, for the full duration of the assignment, Article 65.5 specifically

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states that it “does not apply to rotations outside the Society jurisdiction”. This is further

analyzed below.

17.

Any Real Time Operations Team complement gap must in any case be filled. It is

typically filled by OPG with a “rotation in” by an employee from outside the Team.

Rotations out and in are demonstrated by the documents at T3 and T4 of the Society’s

Book of Documents and an OPG Excel spreadsheet for the period January 2019 to June

2023 (again notwithstanding OPG’s objection that post-grievance evidence is irrelevant

and therefore inadmissible). Society Book of Documents T10 contains documentation

for rotations into the Real Time Operations Team, and Society Supplementary Book of

Documents Ts 1, 2 and 3 contain documentation relating to rotations out of the Team.

D’Cunha testified that there is typically no exact temporal correlation between rotations

out and rotations in because of availability and release issues.

18.

The Society claims that the following rotations into the Real Time Operations

Team MP-4 Coordinator positions have occurred since November 2018 (quoted from

paragraph 10 of the Society’s Hearing Brief):

“First Set of Rotations:

•

John Jonassen (November 2018 – rotation ended and made regular [permanent]

in January 2020)

Jeffrey Sauer (2019 – rotation ended and made regular [permanent] in October

2019, no letter in documents)

Roger Liu (pre-Jan 2019 – rotation ended and made regular [permanent] in

August 2019, no letter in documents)

Gagan Toor (Dec 2019 – Feb 2020, no letter in documents)

Second Set of Rotations:

•

Melisa Licenji (Jan 2020 – March 2022)

Jasmine Majdpour (July 2020 – July 2021)

Hassan Hamden [sic] (June 2020 – Jan 2022)

Third Set of Rotations:

•

Tolbert Akanni (July 2021 – July 2023)

Marina Fiorente (July 2021 – July 2023)

2 MP-4 rotations have been posted in the group as of the date of this brief

[November 1, 2021].”

19.

OPG’s Hearing Brief and the documentation provided details employee

movements into and out of the Real Time Operations Team. The Society claims that the

shift schedule documentation included in its Book of Documents demonstrates that all the

rotations into the Team have filled or are filling the same three MP-4 vacancies.

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D’Cunha confirmed that all of the rotations in were at the MP-4 level and that because of

the up-level training employees on the Team receive, internal step-ups have been used to

cover the gaps left by MP-5 and MP-6 rotations out.

20.

The Society claims that as at the November 1, 2021 date of its Hearing Brief the

complement of the Real Time Operations Team was 5 MP-4s, 7 MP-5s and 6 MP-6s, as

demonstrated by the organizational charts included in Ts 3 and 4 of its Book of

Documents. D’Cunha and OPG in its Hearing Brief deny that is actually the case. They

say that MP-4s and MP-5s are “juggled” to fill gaps and maintain appropriate Real Time

Operations Team coverage; that is, so that there is always full coverage on all 3 (MP-4,

MP-5 and MP-6) desks for all 6 shifts (i.e. the 5 rotating shifts and the G day shift).

21.

In cross-examination D’Cunha agreed that there are times when there is a

combination of MP-4s and MP-5s covering the MP-4 desk, in which case a covering MP-

5 is stepped down to the MP-4 level (but still paid as an MP-5) to backfill an empty MP-4

desk, but that the Real Time Operations Team is always staffed by a full complement of

18. D’Cunha confirmed that there is nothing in the shift schedules that indicates that an

employee is in a stepped-down or stepped-up position. She also confirmed that a fully

staffed without holes Real Time Operations Team consists of a MP-4 Coordinator, a MP-

5 Specialist, and a MP-6 Supervisor on all 6 shifts. D’Cunha testified that if there is

enough warning and an opportunity to do so, MP-4s are sometimes brought into the Real

Time Operations Team in anticipation of a gap before it actually occurs. She also

testified that a MP-4 may even be brought into the Team on a developmental opportunity

basis in response to an employee expression of interest (which I infer is even if there isn’t

an actual or anticipated gap in the standard 18-person complement). She added that the

day shift G Crew is also used as a developmental crew because of the learning

opportunities afforded by that crew’s exposure to outside groups. It seems that G Crew

developmental opportunities are for other than Real Time Operations Team purposes

because D’Cunha testified that this is why OPG wants more experienced people on the G

Crew (although Licenji’s rotation into the Real Time Operations Team per Society Bok

of Documents T10 detailed below was specifically to G Crew – but nothing turns on

this).

22.

D’Cunha spoke to the Organization Chart and other rotation documentation in the

Society’s Books of Documents, and to OPG’s Excel spreadsheet summary and Hearing

Brief in that respect. Read together they reveal that since January 2019, 9 employees

have rotated into the Real Time Operations Team in fill gaps created by 3 retirements and

5 rotations out (Sauer, who subsequently became permanent and then rotated out, Liu,

Jonassen, Toor, Licenji, Hamdan, Majdpour, Akanni and Fiorente ). OPG’s uncontested

assertion is that the vacancy created by Ing’s retirement was posted as a MP-5 position.

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The Organization Charts the Society relies on show that he was an MP-5 Specialist. That

vacancy has since been filled by White, who had been an MP-4 Coordinator on the Real

Time Operations Team. I have no evidence of the positions of the other retirees (Norman

and Speed). D’Cunha testified that in addition to the rotations in, retiree Pathy was

brought in on contract to fill in a gap on the Team.¹The individuals who rotated out

were MP-4 Coordinator Sauer (to a Market Affairs position); MP-6 Supervisor Beard (to

a management role and then to a bargaining unit Market Renewal assignment); MP-6

Supervisor Wong (to OPG wholly owned but operationally separate subsidiary Atura);

and MP-4 Eminowicz (to a Market Affairs position that became permanent). The

documentation provided reveals the following details²:

 Sauer: OPG’s Excel spreadsheet shows that Sauer rotated into the Real Time

Operations Team in July 2018 and became permanent in or about October 2019.

OPG’s Hearing Brief states and the Organization Charts show this was into a MP-

4 Coordinator position. The spreadsheet shows that Sauer rotated out of his Real

Time Operations Team position to a “Market Affairs” position outside the

bargaining unit in or about September 2020 and is scheduled to return in

September 2022. OPG’s Hearing Brief states that Sauer rotated out on September

3, 2020 and was replaced with a rotation in at the MP-4 level. I have no other

documentation relating to Sauer’s 2019 movements, including any Article 5.1.1

notice to the Society.

 Liu: The Excel spreadsheet shows that Liu rotated into the Real Time Operations

Team in March 2019 and became permanent in or about the end of July or

beginning of August 2019. The Organization Charts show him as a MP-4

Coordinator. There is no other documentation relating to Liu’s 2019 rotation into

the Real Time Operations Team, including any Article 65.3 notice to the Society.

 Jonassen: The Excel spreadsheet states that Jonassen’s time in the Real Time

Operations Team “started Nov 2018, permanent role in DA [Day Ahead] Jan

2020”. The Society’s Supplementary Book of Documents T3 includes a

September 27, 2018 letter that shows that Jonassen started a rotation into a MP-4

Coordinator Real Time Operations Team position on November 1, 2018 that was

scheduled to last for “Up to12 months (Subject to change based on resourcing &

¹Pathy’s name appears on the January-March and May 2019 schedules provided. No other documentation

relating to him is before me.

²Although not all relevant rotation documentation is before me, it appears that the Society received copies

of the documentation confirming all accepted rotations into the Real Time Operations Team. There is no

suggestion it did not.

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business requirements)”; a July 15, 2019 letter extending the rotation to December

31, 2019; and a December 10, 2019 letter further extending it to June 28, 2020.

There is no supporting documentation for the spreadsheet notation that Jonassen

became permanent on the Day Ahead Team in January 2020 or regarding his

resignation. I note that Jonassen’s name appears on the Real Time Operations

Team schedule throughout 2020.³There is no Article 65.5.2 posting

documentation for Jonassen’s more than 6-month long initial rotation, or evidence

that OPG gave the Society any Article 65.3 notice of either the initial rotation or

either extension.

 Wong: The Organization Charts and the parties’ Hearing Briefs identify Wong as

a Real Time Operations Team MP-6 Supervisor. The Excel spreadsheet shows

that Wong rotated out of his Real Time Operations Team bargaining unit position

to a “DA [Day Ahead] Manager” position outside the bargaining unit in or about

late March 2019, and to a non-bargaining unit “RT [Real Time] Manager”

position in or about October 2019 (i.e. both were rotations out of the Society

bargaining unit). The Society’s Supplementary Book of Documents includes a

March 30, 2020 offer of a “Sr Manager Real Time Market Ops” position outside

the bargaining unit beginning April 1, 2020 and ending October 8, 2020 which

Wong accepted.⁴The spreadsheet shows that Wong then rotated out of the Team

on a secondment to Atura (a wholly owned but operationally separate subsidiary

of OPG) in or about April 2021 and is scheduled to return in or about the

beginning of May 2022 to work outside of the Control Room. D’Cunha explained

that Ontario Energy Board (“OEB”) requirements prohibit Wong from being

placed back into the Control Room for a period of 6 months when rotates back

into the Real Time Operations Team from Atura, and that he will be assigned to

the Commercial Operations Team for that period. There is no evidence that OPG

gave the Society any Article 5.1.1 notice of any of Wong’s moves to positions

outside the bargaining unit.

 Beard: The Organization Charts and the parties’ Hearing Briefs identify Beard as

a Real Time Operations Team MP-6 Supervisor. The Excel spreadsheet shows

that Beard rotated out of her Real Time Operations Team bargaining unit position

³Sauer’s and Jonassen’s names appear on the Real Time Operations Team schedule for every month in

2019 and 2020. Jonassen’s name is no longer on the schedule beginning January 2021, and Sauer’s name

no longer appears beginning May 2021. Liu’s name first appears in March 2019 and is no longer on the

schedule beginning January 2021. D’Cunha testified that one cannot tell from the schedule whether an

employee on it was in a permanent or rotational position, or in a step-up (or step-down) position.

⁴Although Wong’s and Beard’s names appear on the Real Time Operations Team schedule throughout

their rotation out assignments, this is not inconsistent because D’Cunha testified that employees who have

rotated out of the Real Time Operations Team remain available to fill in a gap if necessary.

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to a “Settlements Manager” position outside the bargaining unit from in or about

late November 2019 to in or about late September 2020. This is consistent with a

November 19, 2019 offer Beard accepted for a Senior Manager Settlements

position starting November 21, 2019 and ending September 18, 2020 (Society

Supplementary Book of Documents, T2). The spreadsheet shows that

immediately thereafter Beard was assigned to a bargaining unit “Market

Renewal” position beginning September 2020 and scheduled to end at the end of

April 2023 – a period of some 31 months. There is no supporting documentary

evidence for this. D’Cunha testified that after Beard’s rotation out to the Senior

Manager Settlements assignment ended she rotated back into the Real Time

Operations Team but that because of her Control Room expertise she was

assigned to the Market Renewal Project which D’Cunha says is still on the Team

but not on the shift schedule. However, Beard was available to fill in in the

Control Room if needed – which I suppose explains why Beard actually did

remain on the shift schedules throughout. Despite her testimony in chief, in

cross-examination D’Cunha offered that Beard’s move to Market Renewal was

“technically” not a rotation. What D’Cunha meant by that is unclear. (If not a

rotation, what was (is) it?) There is no evidence that OPG gave the Society any

Article 5.1.1 notice of Beard’s move to the “Settlements Manager” position, or of

any Article 65.3 notice to the Society of her Market Renewal Project assignment,

of any Article 65.5.2 posting, or any Society agreement to either dispense with a

posting or to extend the assignment beyond 2 years.

 Toor: The Excel spreadsheet shows that Toor rotated into the Real Time

Operations Team on a “NBA” in or about December 2019 and left in or about

February 2020. However, his name continued to appear on the shift schedules

until July 2020. There is no explanation for this apparent anomaly, although the

blanks beside his name suggest he was not actually available for work after

February 2020. There is no documentation or mention in OPG’s Hearing Brief of

Toor. There is no evidence that OPG gave the Society any Article 65.3 notice of

Toor’s assignment.

 Licenji: The Excel spreadsheet shows that Licenji rotated into the Real Time

Operations Team in or about March 2020 and became permanent in or about the

end of August or beginning of September 2021. The only related document (other

than the work schedules) is a November 23, 2020 letter that indicates that the

rotation was offered to her on March 1, 2020 (which means that it started on or

after that) and confirms the extension of the rotation to March 1, 2022. This

apparently ended prematurely when she was made permanent. OPG’s Hearing

Brief states that Licenji rotated into the Real Time Operations Team on March 1,

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2020 to cover the gap left by Beard’s rotation out and was expected to end March

1, 2021 but was extended to March 1, 2022, and that she was selected to fill the

permanent MP-4 Coordinator vacancy left by Eminowicz’ departure in October

2021. However, D’Cunha testified the Licenji’s rotation in “technically” covered

Wong’s rotation out, and that Licenji filled the permanent vacancy left by Ing’s

retirement and Akanni backfilled the rotation gap left as a result (see below). As

an initially more than 6-month long rotation Article 65.5.2 required that it be

posted unless the Society agreed otherwise. There is no evidence that it was

posted, or that the Society agreed it did not have to be. The “extension” of the

“rotation” to March 1, 2022 was arguably a new assignment. In any event, there

is no evidence that the Society received Article 65.3 notice of relating to these

assignments.

 Hamdan: The Excel spreadsheet shows he rotated into the Real Time Operations

Team in or about June 2020 and that he “resigned” in or about September 2021.

The only related document (other than the work schedules) is a November 23,

2020 letter that indicates that the rotation was offered to him on June 3, 2020

(which must mean it started on or after that date) and confirms the extension of

the rotation to January 2, 2022. D’Cunha testified and OPG’s Hearing Brief

indicates that Hamdan’s rotation in partly covered the gap left by Beard’s rotation

out. Hamdan’s resignation is not documented in the materials before me. As a

more than 6-month long rotation Article 65.5.2 required that it be posted unless

the Society agreed otherwise. There is no evidence that it was posted, or that the

Society agreed it did not have to be. There is no evidence that the Society

received Article 65.3 notice of relating to Hamdan’s assignment.

 Majdpour: The spreadsheet shows that Majdpour rotated into the Real Time

Operations Team in or about June 2020 and “resigned” in or about June 2021.

The only related document (other than the work schedules) is a February 28, 2020

letter that specifies a July 16, 2020 rotation MP-4 Coordinator start date and a

July 14, 2021 end date (subject to change). D’Cunha testified that Majdpour’s

rotation in covered the gap left by Sauer’s rotation out. Majdpour’s resignation is

not documented in the materials before me. There is no Article 65.5.2 posting

documentation for the more than 6-month long rotation, or evidence that OPG

gave the Society any Article 65.3 notice of the rotation.

 Akanni: A May 20, 2021 letter in both of the Society’s Books of Documents

specifies a July 8, 2021 MP-4 Coordinator rotation start date and a July 8, 2023

end date (subject to change). The Excel spreadsheet shows that Akanni rotated

into the Real Time Operations Team on a NBA in April 2021, that that was turned

13

into a rotation in or about July 2021, and that he became permanent in the Team

in or about September 2021 as Eminowicz’ replacement (see below); which is

inconsistent with OPG’s assertion that Licenji replaced Eminowicz and that

Akanni replaced Majdpour to cover the domino effect of Ing’s absence when

Majdpour resigned (although nothing turns on this). There is no documentation

relating to the change of Akanni’s status to permanent other than the undisputed

assertion in OPG’s Hearing Brief that Akanni moved into Ing’s MP-5 Specialist

position. D’Cunha testified that the Team was scrambling when Ing gave what

was effectively one month’s notice of retirement and brought in Akanni, who had

expressed interest but was unsure whether shift work was for him, in on a NBA to

let him try it out. As noted above, D’Cunha testified that Licenji, who was

already on the Team in a rotation in position, filled the permanent vacancy left by

Ing’s retirement and Akanni backfilled into her rotation spot. OPG’s Hearing

Brief states (in paragraph 37(a)) that Akanni moved into the Real Time

Operations Team on April 15, 2021 on a NBA that OPG’s Pavasars discussed

with Society Unit Director Mastorakos, pursuant to Article 65.3. A rotation was

posted at the MP-4 level, an offer letter was given to Akani on May 20, 2021 and

the rotation commenced on July 8, 2021. There is no Article 65.5.2 posting

documentation for the more than 6-month long rotation.

 Fiorente: The Excel spreadsheet shows that like Akanni, Fiorente took a NBA on

the Real Time Operations Team in or about April to June 2021, then rotated into

the Team in July 2021 with the expectation that she will leave in or about June

2023. An August 10, 2021 letter included in the Society’s Books of Documents

backdates her rotation into a MP-4 Coordinator Real Time Operations Team

position effective July 12, 2021 with a July 12, 2023 end date. There is no Article

65.5.2 posting documentation for the more than 6-month long rotation, or

evidence that OPG gave the Society any Article 65.3 notice of the rotation.

D’Cunha testified that bringing Fiorente in on an NBA was part of the effort to

fill the gap created by Ing’s retirement after she, like Akanni, expressed interest

but was not sure shift work was for her. However, D’Cunha also testified that

Fiorente backfilled MP-4 Coordinator Eminowicz’ position when he rotated out

of the Real Time Operations Team, and that when Eminowicz’ departure became

permanent Akanni was the successful applicant for the resulting permanent

vacancy job posting, and Fiorente then backfilled Akannis’ rotation in, initially on

a NBA and then on a rotation in. OPG’s Hearing Brief states (in paragraph 37(b))

that Fiorente came into the Real Time Operations Team from the Day Ahead

Team on a NBA beginning May 20, 2021 following an Article 65.3 discussion

between OPG’s Pavasars and Society Unit Director Mastorakos, and that after

training in the NBA she was the successful applicant for a 2 year rotation which

14

began on July 12, 2021 – which suggests there was an Article 65.5.2 posting

notwithstanding that there is no posting documentation in evidence.

 Sunassy: The Excel spreadsheet shows Sunassy took a NBA in the Real Time

Operations Team from July to November 2021. OPG’s Hearing Brief states that

her NBA was scheduled to conclude on January 12, 2022 in anticipation of the

MP-4 and MP-5 vacancies created Akanni’s move into Ing’s MP-5 position when

the latter retired. There is no evidence about what Sunassy was doing from

December 2021 to January 12, 2022. There is no evidence that OPG gave the

Society any Article 65.3 notice of Sunassy’s more than 10 working days “NBA”.

Note: Notwithstanding the absence of posting documentation, OPG asserts in its Hearing

Brief (paragraph 40-41) that “separate Incoming Rotations for [Real Time Operations

Team] MP-4s have been posted” to fill the staffing gaps left by Wong’s and Beard’s

rotations out of the Real Time Operations Team. There is nothing in the Society’s

documentation or submissions that suggest otherwise.

23.

Other than a reference to him on the Excel spreadsheet that he “left PMC [Control

Room] permanent on July 15 [2021]” and references to him in OPG’s Hearing Brief there

is no documentation relating to Eminowicz before me. As indicated above, D’Cunha

testified that Eminowicz was a MP-4 Control Room Coordinator who initially rotated out

and had his position backfilled by Fiorente, that Akanni was the successful applicant for

Eminowicz’ permanent position when his departure became permanent, and that Fiorente

then backfilled Akanni’s rotation in initially on a NBA and then on a rotation in.

24.

OPG describes two forms of NBA in its Hearing Brief: an assignment of an

employee to a different role within that employee’s own work group (usually as step-up

to a higher level); and an assignment of an employee out of his work group for more than

10 days but less than 6 months. D’Cunha testified about NBAs, using Akanni, Fiorente

and Toor as examples. She testified that Toor expressed an interest in the Real Time

Operations Team but was not sure that shiftwork was for him so it was decided to use the

NBA as an opportunity for him to try it out. In the result and unlike Akanni and Fiorente,

Toor decided the Real Time Operations Team was not for him. D’Cunha testified that

NBAs are for up to 6 months, after which it must be posted as a rotation. She did not

explain where this understanding comes from. D’Cunha says the only notice to the

Society of a NBA is through the schedule which is available to the Society Delegate in

the Control Room, and that there is a 20-year practice of using NBAs. (It is not clear

whether D’Cunha meant in the Real Time Operations Team since that is what she was

speaking to or more broadly, but again nothing turn on this distinction). She is not aware

of any Society grievance in that respect (other than this one). D’Cunha testified in cross-

15

examination that she believes that the collective agreement permits a NBA to be used for

up to 6 months because a posting is not required unless it is for more than 6 months –

which although she did not say so seems to equate such a NBA to a rotation (having

regard to Article 65.5.2).

25.

D’Cunha’s attention was drawn to the article 65.3 advance planning requirements

for assignments lasting more than 10 days. She testified that the Real Time Operations

Team Manager has a conversation with the Society Unit Director about NBAs and

rotations. She acknowledges that there have been miscommunications in that respect, but

repeated that OPG has used step-ups for a long time without the Society raising any

issues in that respect. Despite the assertion on OPG’s Hearing Brief, D’Cunha offered

that a step-up is different from a NBA. She did not explain why or how they are different

and acknowledged that OPG does not have formal advance planning discussions with the

Society about step-ups. She acknowledged that none of the step-ups documented in the

Society’s Supplementary Book of Documents T4 and OPG’s “Step Up Assignments”

document were posted. She offered that many factors are considered and that a short

notice departure may influence the length of a step-up.

26.

It was suggested to D’Cunha in cross-examination that 5.2 MP-4 FTEs (full-time

equivalents) are required to fill the role on the Real Time Operations Team. She

responded that she doesn’t know about that, but that what is required is a total

complement of 18. There is reference to a 5.2 FTE roster requirement in an April 3-

September 23, 2019 email chain between Day Ahead and Real Time Operations Group

Sr. Manager Rosati and Society Unit Director Mastorakos (Society Book of Documents

T8). In an April 3, 2019 email Mastorakos stated that a “full shift complement of MP-4’s

requires 5.2 FTE’s” but that there will only be 4 MP-4s in the “newly aligned units”, and

asked Rosati how he planned “to meet the 0.2 FTE gap that will exist” in the shift

schedule. Rosati responded that he would “distribute that 0.2 FTE of coverage among

existing staff”. Mastorakos wrote back that he (for the Society) needed more specificity,

and asked whether the plan was to bring MP-4s in on overtime to meet the scheduling

shortfall, or to meet the 0.2 FTE shortfall by scheduling MP-5s on G Crew to cover open

shifts. Rosati responded that OPG “would schedule MP-5s (on G crew) to cover the open

shifts”. Rosati followed up on September 23, 2019, writing that he thought he had sent

Mastorakos a follow up “saying we were not moving forward on this” but that he may

have just told him verbally, adding:

“Anyway, as per our conversation this morning, I have re-considered this based on

observing the needs of G crew over the last 6 months and I would like to move forward

with this. Let me know if Society has any issues or if you have any questions.”

Mastorakos responded:

16

“So, in a nutshell, you are asking for the Society’s concurrence to go under complement

MP-4’s (i.e., 5 FTE’s); to go over complement MP-5’s (i.e., 7 FTE’s); and stay at

complement MP-6’s (i.e., 6 FTE’s). The Society does not have any issues with this

request and is in agreement with your plan to realign the PMC as detailed above and

noted below.”

Rosati replied that that was correct.

27.

There is no other evidence about Real Time Operations Team FTE staffing

requirements (including where these come from, or reference to any collective agreement

provision in that respect).

IV.

THE COLLECTIVE AGREEMENT

28.

Because the collective agreement provisions in play are lengthy, they are set out

in Appendix B (page 58) for ease of reference.

V.

SUBMISSIONS - Summarized

29.

The parties’ Hearing Briefs include extensive submissions. Counsel

supplemented these with oral submissions at the January 12, 2022 hearing, most of which

elaborated on in their respective Hearing Briefs or responded to the other party’s

submissions.

30.

Notwithstanding the references in OPG’s Hearing Brief submissions to the Day

Ahead & Real Time Operations Group or the “Group”, the focus of D’Cunha’s testimony

and both parties’ Hearing Briefs is on the complement and movements in and out of the

Real Time Operations Team, which as noted above is part of the Day Ahead & Real

Time Operations Group. The analysis required does not depend on any distinction

between the Group and the Team. I will therefore refer only to the Real Time Operations

Team in my summary of the parties’ submissions (except when using direct quotes).

(a)

The Society

31.

To repeat, the Society alleges that OPG has violated Article 65 of the collective

agreement by improperly using rotational and other short-term assignments in the Day

Ahead & Real Time Operations group. The Society alleges that OPG has violated

Articles 65.2 and 65.5.2 of the collective agreement by improperly using rotations to staff

ongoing permanent MP-4 positions, and has violated Articles 65.3 and 65.6.1 by

17

improperly using NBAs to step-up MP-4 and MP-5 employees into vacant MP-5 and

MP-6 positions respectively.

32.

The Society submits that the collective agreement provides OPG with only three

options for filling vacancies: short-term “relief” assignments normally for up to 3 months

and not exceeding 1 year; “rotation” assignments normally for more than 3 months but

not exceeding 2 years without the Society’s agreement; and ongoing positions that must

be posted and filled as permanent positions. The Society argues that the collective

agreement treats a rotation assignment that continues for more than 2 years without the

Society’s consent to be an ongoing regular position that must be treated and filled as a

permanent vacancy (in accordance with Article 65.6.1).

33.

The Society submits that on the undisputed facts in this case, the Real Time

Operations Team MP-4 positions being filled with the rotation assignments in issue are

incontrovertibly ongoing positions. Ms. Bell argues that OPG does not have a collective

agreement right to backfill an ongoing position with a rotation assignment, and is in any

case not permitted to extend a rotation assignment beyond 2 years without the Society’s

agreement. She submits that OPG created a permanent shortfall in the number of MP-4

Coordinator positions in the Real Time Operations Team in September 2019, and has

since then been improperly using rotation assignments to fill these permanent vacancies.

Ms. Bell submits that the evidence suggests that OPG intends to continue to do until at

least 2023.

34.

The Society points out that Article 65.5 provides that rotations are used “to

accomplish work for situations that occur between short-term relief and ongoing

positions”, and that Article 65.5.2 stipulates that the Society’s approval is required in

order for OPG to continue a rotation “beyond two years”. The Society claims that OPG

has been using back-to-back rotation assignments, albeit of different employees, to fill 3

ongoing MP-4 Coordinator positions on the Real Time Operations Team contrary to

Article 65.2 since before 2019. The Society submits that these rotations have effectively

been ongoing for over two years without its agreement, contrary to Articles 65.2 and

65.5.2. The Society argues that OPG has been improperly circumventing the 2-year limit

on rotation assignments by repeatedly re-posting and filling what are really the same

assignments. The Society submits that although the employees who have filled the MP-4

rotation assignments have changed, the positions filled by the assignments have not, and

that back-to-back rotation assignments to different employees in what is in fact the same

ongoing position violates the collective agreement prescribed time limit for such

assignments. Ms. Bell argues that interpreting the collective agreement in a manner that

permits OPG to do what it has been doing would be an absurd result that would render

meaningless the Article 65.5.2 requirement for Society agreement. The Society submits

18

that the 2-year limitation on rotation assignments without the Society’s agreement applies

to the work, not to the length of time any individual employee is assigned to perform it.

35.

The Society further submits that OPG’s use of either NBAs or “step-ups” to place

MP-4 and MP-5 Real Time Operations Team employees in vacancies in MP-5 and MP-6

Team positions violates Article 65.6.1 which recognizes relief, rotation, and regular

posting as the only available options for filling positions. The Society submits that NBA

is a work assignment tool in OPG’s collective agreement with the PWU and is not a term

used or recognized in its collective agreement with OPG. Ms. Bell argues that it is

apparent from D’Cunha’s evidence that what OPG has been calling a NBA is really a

rotation assignment. She submits that OPG cannot unilaterally appoint employees to

vacancies except in accordance with Article 65, and specifically Article 65.6.1 which

specifies that: “All vacancies for assignments which do not fall into the category of relief

or rotations shall be advertised OPG-wide unless there is agreement with the Society

Local Vice-President or the following conditions apply: …”, none of which do.

36.

The Society submits that OPG’s “step-ups” are really relief or rotation

assignments which need not be posted if they are for less than 6 months, but that Article

65.3 requires advance planning with the Society Unit Director in that respect. The

Society submits that OPG has violated Article 65.3 by failing to conduct the required

advance planning with the Society’s Unit Director, or providing the required notice or

information to the Society in that respect. Ms. Bell says that the fact that there is a

Society Delegate on the Real Time Operations Team who can discover whether an

employee has been stepped-up does not satisfy OPG’s Article 65.3 “Advance Planning”

obligation.

37.

The Society claims that the result of the April 3-September 23, 2019 email

exchange between Rosati and Mastorakos (paragraph 26, above) is an agreement to

convert one of the regular Real Time Operations Team MP-4 positions to a MP-5

position. The Society submits that OPG has in any event used perpetual MP-4 rotations

to fill the alleged 0.2 MP-4 FTE shortfall on the Real Time Operations Team by creating

a MP-4 rotation assignment staffed on a consistent basis since 2019 (Society Hearing

Brief paragraph 9).

38.

Correctly anticipating OPG’s argument that the Article 65.5.5 right of an

employee on a rotation assignment to return to their original position means that position

cannot be filled as a permanent vacancy, Ms. Bell points out that the actual collective

agreement guarantee is that an employee who accepts a rotation can return to their

original position “if available, or to a comparable position normally with the sending

unit”, which means that such an employee’s “original” or base position is not held for

19

them. She points out that the evidence suggests that an employee who rotates out of their

base position may not seek to return to that position for years, and that there is no

reasonable expectation that an employee on rotation will seek return to their original or

base position.

39.

In response to OPG’s reliance on Article 65.5.1(g) the Society seems to concede

that OPG can use a rotation assignment to backfill a position (Wong’s for example), but

only for a maximum of 2 years without the Society’s agreement (presumably a

submission in the alternative since this is inconsistent with its primary position that a

rotation cannot be used to fill an ongoing position).

40.

Ms. Bell also anticipated that OPG would rely on Arbitrator Bloch’s apparently

unreported September 18, 2007, November 21, 2008, and May 15, 2013 Awards

concerning Article 65.3. She argues that Arbitrator Bloch did not say that the Appendix

B form attached to the 2007 Award was either agreed to or binding on the parties. She

submits that OPG cannot subvert the collective agreement by using a form that has not

been agreed to as part of the collective agreement, or by conferring a status not

recognized in the collective agreement to an employee or position. She argues that the

fact that doing so may be to OPG’s and an employee’s advantage is a consideration that

is subject to the restrictions in the collective agreement.

41.

In essence, the Society submits (adapted from paragraphs 36-37 of the Society’s

Hearing Brief) that:

(a)

(b)

OPG has been violating Article 65.2 and 65.5.2 of the collective agreement by

using back-to-back rotations to fill the same ongoing Real Time Operations Team

MP-4 Coordinator vacancies for more than 2 years without the Society’s

agreement.

OPG has violated Article 65.6.1 of the collective agreement “by using what it

refers to as a “Non-Base Assignments” to “step up” MP-4s and MP-5s in the Day

Ahead & Real Time Operations group [sic] into vacant MP-5 and MP-6

positions” instead of one of the only 3 collective agreement options available

(relief, rotation, or regular posting). “A Non-Base Assignment is not an

assignment in the Society collective agreement, and OPG cannot unilaterally

appoint employees to vacancies except in accordance with the terms of Article

65.”⁵

⁵Quotes taken from paragraph 37 of the Society’s Hearing Brief.

20

(c)

OPG has violated Article 65.3 by failing to meet with the Society Unit Director

for advance planning purposes with respect to the short term positions in issue.

42.

Ms. Bell cited paragraphs 77-78 of my decision in Ontario Power Generation v.

Society of Energy Professionals (Policy Grievance OPGN-2010-5640), 2012

CarswellOnt 16274, 113 C.L.A.S. 127; 2012 CanLII 90054 (ON LA) in support of the

Society’s submissions.

43.

The Society seeks the following relief (paragraph 38 of the Society’s Hearing

Brief):

1.

A Declaration that OPG has violated Article 65 by using MP-4 Real Time Market

Coordinator rotation assignments for ongoing work, and by extending such

assignments beyond 2 years without the Society’s agreement.

2.

3.

A Declaration that OPG is only allowed to use the relief, rotation, and regular

assignments specified in the collective agreement to fill vacancies.

An Order requiring OPG to post and fill the 3 Real Time Operations Team MP-4

Coordinator positions it has been treating as rotation assignments as regular

positions.

4.

5.

An Order requiring OPG to stop using “NBAs” to fill Day Ahead & Real Time

Operations Group short-term assignment needs.

An Order requiring OPG to fill the Day Ahead & Real Time Operations Group

short-term assignment needs using the collective agreement relief, rotation,

regular/permanent or temporary job classifications, with proper advance planning

notification and formal offer letters to employees in accordance with the

collective agreement.

(b)

44.

OPG

OPG submits that the thrust of the Society’s claim that back-to-back rotations into

the Real Time Operations Team MP-4 positions violates the collective agreement fails to

account for the rotations out of the Team that had or have to be backfilled.

45.

OPG notes that the parties’ have specified in Article 65.1 that their intention is

that Article 65 “Vacancies (Relief, Rotations and Selections)” will provide open and fair

access to career opportunities, and enable OPG to customize staffing requirements.

21

46.

Pointing to the definitions in Article 65.2 and the different processes for filling the

work assignments defined in Articles 65.3, 65.3 and 65.5, Mr. Hayter submits that the

only limitation on a relief assignment of less than 3 months for “short term bridging for

selection or rotation” is that “the process for selecting the employee should be easy and

quick and provide a fair opportunity to employees in the work unit to perform relief.” He

argues that this means that it is the assignment, not the work that must be less than 3

months in duration. Mr. Hayter notes that although rotation assignments expected to last

6 months or longer must be posted (Article 65.5.2), relief assignments and rotations

shorter than 6 months need not be. He argues that it is in any case the assignment – not

the work – that duration limitations apply to.

47.

OPG submits in paragraph 6 of its Hearing Brief that:

“Article 65.5 provides that “rotations are used to accomplish work for situations that

occur between short-term relief and ongoing positions”. ‘Ongoing positions’ is not

defined but is presumably work which is ongoing, not currently performed by someone

for whom it is a Base position, and therefore subject to the permanent vacancy process.

In other words, an “ongoing position” would not describe the situation where a regular

employee leaves her Base position to take up a Rotation and who will return to that Base

position when the rotation has ended.”

(Italicized emphasis supplied.)

Further, says Mr. Hayter, Articles 65.3, 65.4 and 65.5 set out different processes for

filling the defined “Relief/Rotations”, “Relief”, and “Rotations” respectively, and submits

that OPG has not violated any of them.

48.

OPG submits that the factual situation presented concerns the “principles” in

Article 65.5.1, particularly clauses (b) and (g). Mr. Hayter argues that these collective

agreement “principles” authorize the use of rotations to resource regular Real Time

Operations Team positions whose incumbents have taken a rotation assignment outside

of the Team to work in temporary work programs or fill other temporary workload

requirements. Mr. Hayter notes that Article 65.6.1(b) excludes “vacancies” to be filled

by an employee returning from a relief or rotation assignment from the posting

requirement, and that there is therefore no requirement to post either a vacated position in

a sending Unit, or the position in the receiving Unit when an employee returns to their

base position in the sending Unit when the rotation ends. He submits that the Society’s

submissions fail to take the employee right Article 65.5 right to return to their original

position into account.

49.

Mr. Hayter submits that the Article 65.5.1(g) principle confirms OPG’s

management right to determine whether, and how to staff a work group or team in

22

response to a rotation out, because it gives OPG flexibility “in resourcing regular

positions as a result of employees being provided rotational opportunities and temporary

relief assignments” and to meet the requirements of temporary work programs or

workload requirements. He argues that this means that OPG need not post a rotation into

a MP-6 position when a base MP-6 employee leaves on a rotation assignment. He

submits OPG has the management right to determine the level of the replacement rotation

in and to step-up an employee within the same work group to a higher classification – in

this case, for example, to step-up a MP-5 Specialist to the fill the MP-6 Supervisor

position left by the MP-6 on an Outgoing Rotation, and to step-up a MP-4 Coordinator to

fill the stepped-up MP-5’s position.

50.

OPG does not plead estoppel. However, Mr. Hayter submits that step-ups have

occurred in the Real Time Operations Team to the knowledge on Society Unit Directors

who have access to the master and monthly revised schedules, which he says show which

employees have been stepped-up, for at least 20 years without grievance or other

complaint from the Society. Mr. Hayter submits that there is nothing about OPG’s use of

step-ups that is contrary to the collective agreement.

51.

Mr. Hayter notes that there is nothing in the collective agreement that either limits

the number of rotation assignments an employee can accept, or restricts OPG’s Article

65.5.1(b) or (g) flexibility rights “to resource regular positions as a result of employees

being provided rotational opportunities and temporary relief assignments” when an

employee is released on consecutive rotations, or to meet temporary work programs and

workload requirements. He submits that Article 65 gives OPG the right to replace a

rotation out with a rotation in, and reiterates that since every employee on a rotation has

the right to return to their base position, vacancies created by rotations need not be

posted. He argues that it follows that the replacement of a rotation out with a rotation in

cannot constitute a permanent vacancy which must be posted, regardless of the number of

consecutive rotations that takes the base employee away because the base position

remains, and the complement within the Team (or Group as a whole) does not change.

52.

OPG submits that it has staffed the Real Time Operations Team in manner that

has allowed senior employees like Beard and Wong to use rotations out to enhance their

career aspirations and opportunities, and that these have in turn enhanced the career

aspirations, opportunities and training of other employees within the Real Time

Operations Team who have been stepped-up to backfill MP-5 and MP-6 positions, and

also for bargaining unit employees from outside of the Team who have rotated in at the

MP-4 level to backfill for them. OPG’s Hearing Brief acknowledges (in paragraphs 40-

41) that there have been successive different MP-6 (Beard and Wong) rotations out of the

Team and that in each case, OPG has backfilled the staffing gaps left at the bottom MP-4

23

end of the staffing complement with different posted rotations in for the MP-4 rotations.

(The Society’s Hearing Brief confirms, at paragraph 12, that these rotations have been

filled with different persons.) OPG submits that its use of rotations does no violence to

the integrity of Article 65.

53.

Mr. Hayter argues that the evidence establishes that the nature of the work of the

Real Time Operations Team positions requires a high degree of specialized training and

knowledge that can only be acquired on the job and makes it impractical, if not

impossible, for OPG to fill gaps in the necessary 18-employee complement of the Real

Time Operations Team in other than the way it has. He reiterates that this is also to the

career development benefit of the Team employees who are stepped-up or employees

from outside of the Team who rotate in to fill gaps created by employees who have

rotated out. He says that it would be a simple matter for OPG to accede to the Society’s

positon by refusing to allow any rotations out, but that that would not be in anyone’s best

interests.

54.

OPG points out that Liu, Sauer and Jonassen all successfully applied for a posted

permanent MP-4 vacancy while on a rotation into the Real Time Operations Team, and

that Licenji’s, Hamdan’s, Majdpour’s, Akanni’s and Fiorente’s rotations into the team did

not, or in Fiorente’s case is not expected to, extend beyond 2 years. Mr. Hayter submits

that the Society’s submission that the continuous rotations into to MP-4 Real Time

Operations Team positions that have not changed ignores that fact that they were

necessitated by rotations out of the Team and were filled by different employees.

Although OPG does not concede that either rotations out or rotations in have to be filled

by different employees in order to be Article 65 compliant, Mr. Hayter argues that having

all been filled by different employees all of the rotations have been separate and Article

65 compliant.

55.

OPG submits that on the facts in this case, there have been no vacancies in any

“ongoing” positions that have not been posted (as they have been when an employee has

left the Real Time Operations Team permanently), albeit perhaps with a temporary step-

up or rotation in to fill the staffing gap until the posting and selection process has been

completed.

56.

OPG says that the Real Time Operations Team complement head count has never

changed from the standard 18. Mr. Hayter submits that although workplace exigencies

sometimes mean that the cascading rotations out and compensatory rotations in are not

temporally symmetrical and may result in what appears to be a deviation from the regular

MP-4 Coordinator, a MP-5 Specialist and a MP-6 Supervisor staffing for each of the

rotating shifts and the G day shift crew (such as the current staffing complement of 5 MP-

24

4s, 7 MP-5s and 6 MP-6s), the total of 6 employees in each position for a total Team

complement of 18 has always been maintained. He in effect argues that anomalies are

temporary and do not violate the collective agreement (as explained in paragraphs 20-31

of OPG’s Hearing Brief).

57.

In paragraphs 47-53 of its Hearing Brief, OPG denies that the collective

agreement limits it to relief, rotation, and regular position options to fill vacancies, or that

the use of NBAs constitutes a violation of Article 65. Mr. Hayter points to the

“Temporary Assignment in a Higher-Rated Job” provisions in Article 66.4 in that respect.

He also says that the Society’s claims (in paragraph 33 of its Hearing Brief) that step-ups

and NBAs are subject to the Article 65.3 notice requirements was not an allegation made

in the grievance before me.

58.

OPG seems to acknowledge that the term NBA is not found in the collective

agreement, and in effect submits that NBA refers to any assignment of an employee away

from their regular or “base” position for less than 6 months. Mr. Hayter points to the

references to NBAs in the 2007 Bloch Award (particularly the “Change in Reporting

Relationship and Non-Base Assignment” form attached as Appendix B), the 2008 Bloch

Award, and the 2021 Mitchell Award, as demonstrating OPG’s appropriate use of NBAs.

Mr. Hayter says that the Society has not previously taken issue with OPG’s more than 20-

year use of NBAs as assignments to a different role within the employee’s work group,

usually as a step-up, or as assignments outside of the employee’s work group for more

than 10 (working) days and less than 6 months. He points out that there is nothing in the

collective agreement apart from Article 65.3 regarding any process requirements for such

assignments, and says that OPG gave Society Unit Director Mastorakos notice of the

NBAs of Akanni and Fiorente.

59.

In his oral submissions, Mr. Hayter acknowledged that OPG did not give the

Society Article 65.3 notice of relief assignments, but submits that neither Article 65.3 nor

anything ese in the collective agreement requires notice to the Society of relief

assignments and that there is also a 20-year practice of not giving the Society such notice.

However, he says that if the Society wants notice of such assignments OPG will provide

it, and that no Declaration is required for the purpose.

60.

The essence of OPG’s submissions adapted from paragraph 54 of OPG’s Hearing

Brief is that:

(a)

The rotations into the Real Time Operations Team complained about by the

Society are rotations that were or are in response to the rotations out of the Team,

25

and that this use of rotations to resource staffing needs is expressly recognized by

Article 65.

(b)

(c)

(d)

(e)

(f)

It has the right to determine the level of a rotation in to fill a staffing gap left by a

rotation out.

There is no collective agreement limitation on the number of rotations an

employee may be released for, whether successive or otherwise.

An employee who accepts a rotation assignment has an Article 65 right to return

to their base position provided it is available (and it is kept available).

Article 65 does not require any “vacancy” created by either a rotation in or a

rotation out to be posted.

It has the right to use step-ups to assign employees within their work group to

perform the work at a higher MP level.

(g)

The Society’s complaint about OPG’s use of step-ups and the application to them

of Article 65.3 was not raised in the grievance herein. Nor has the Society filed

any grievances concerning step-ups in the more than 20 years they have been used

in the Day Ahead & Real Time Operations Group.

(i)

A NBA for less than 6 months need not be posted; and the NBA form is an

acceptable administrative payroll tool that need not be given to the Society.

VI.

DECISION

61.

This is a case of collective agreement interpretation and application. The

meaning and application of the collective agreement provisions that speak to rotations

must be established before the specific issues raised can be determined; namely, Article

65 – and as indicated in paragraph 67, below, Article 5 notwithstanding that the parties

paid no attention to it.

(a)

Principles of Collective Agreement Interpretation and Application

62.

The primary rule of collective agreement interpretation is that the words used

must be given their plain and ordinary labour relations meaning unless it is clear from the

structure of the provision in issue read in the applicable labour relations context that a

different or special meaning is intended, or the plain and ordinary meaning result would

26

be illegal or absurd. Words or phrases cannot be inferred or ignored unless doing so is

essential to the apparent purposive labour relations interpretation required, in which case

the opposite must be done. A specific or special provision prevails over a general

provision because it indicates a more focused attention by the parties.

63.

The Supreme Court of Canada’s instructive decision in Sattva Capital Corp. v.

Creston Moly Corp., 2014 SCC 53 (CanLII), [2014] 2 SCR 633 provides a reminder that

the context of the contract read as a whole and the objective context within which the

contract was negotiated can be a significant contract interpretation consideration.

However, as Rothstein J. made clear in paragraph 60 of Sattva, context cannot change or

“overrule” the meaning of the words used by the parties to express their mutual

contractual intention. That is, words matter most, in no small part because the context

that matters is the one which was or ought to have been known to both parties when the

words agreed to were selected.

64.

The grievance arbitrator’s task is to determine the objective contextual labour

relations meaning of the collective agreement, with the words used being the most

important consideration. The fundamental rebuttable presumptive rule of contract

interpretation is that the parties to the contract purposely chose the language used to

express their shared intention. That is, the presumption is that the parties wrote what they

meant and meant what they wrote. This presumption is as applicable to a collective

agreement as it is to any other contract.

65.

It seems to require constant repeating that considerations of collective agreement

purpose, fairness, internal anomalies, cost or administrative difficulty, or the effect on the

parties or bargaining unit or other employees can only be considered if the grievance

arbitrator is faced with a choice between equally plausible interpretations of the collective

agreement language in issue. The grievance arbitrator’s task is to determine what the

collective agreement objectively requires or prohibits, regardless of the impact on the

parties or employees. The employer, union and bargaining unit employees are entitled to

no more or less than the benefit of the bargain made in the collective agreement as

described by the words the parties chose to use. It is no part of a grievance arbitrator’s

job to save the parties (or either of them) from the consequences of the agreement they

have written.⁶

66.

As noted above, the parties provided me with September 18, 2007, November 21,

2008, and May 15, 2013 Awards concerning Article 65.3 issued by Arbitrator Bloch, and

a June 9, 2021 Award issued by Arbitrator Mitchell concerning Article 10.3(a) in which

⁶See, for example: Ontario Power Generation v. Society of Energy Professionals (Policy Grievance

OPGN-2010-5640), 2012 CarswellOnt 16274, 2012 CanLII 90054 (ON LA) at paragraphs 77-78; and

paragraphs 69-72 of Bell Canada v. Unifor, 2021 CanLII 134922 (ON LA) at paragraphs 69-72.

27

he considered the provisions in Article 65. Although counsel made little more than

passing reference to these Awards I have read and considered them carefully.

67.

Despite the hint provided by Article 65.5, it was only after I carefully read the

Bloch and Mitchell Awards and began my deep dive into Article 65 that it became

apparent that it was necessary to examine the interplay between it and Article 5 in order

to determine the dispute between the parties. I don’t make this observation to be critical

of counsel or the parties, because I understand why their focus was on Article 65.

However, the fact is that they made no submissions about the meaning or application of

Article 5 or how its connection might inform the interpretation of Article 65. I

considered asking for submissions on the point, but Article 5 is referenced in the 2013

Bloch Award as well as in Article 65.5 so the connection was apparent and readily

available for consideration and comment by the parties – who prior to this case were

more familiar with Article 65 than I.

68.

Nevertheless, and notwithstanding that I consider it impossible to fully consider

the meaning and application of the provisions in Article 65 without also considering and

commenting on the application of Article 5, I consider it inappropriate to do so in manner

that would require a remedial response.

(b)

The Bloch and Mitchell Awards Require Consideration

(i) Bloch Awards

Arbitrator Bloch’s 2007 Award concerned the application of Article 65.3 as it

69.

then was. The only difference between the language of the provision then and now is that

the words “of greater than ten (10) working days duration” have since been added. As

Arbitrator Mitchell observed in his subsequent Award, this appears to be a consent

Award intended to resolve the issue going forward.

70.

Arbitrator Bloch described the issue that had led to numerous Society complaints

about OPG Nuclear Generation managers ignoring both the requirements of Article 65.3

and the instructions of the OPG senior management, including the Chief Nuclear Officer,

to comply with the provision. He noted and attached as Appendix B to his Award the

NBA form that OPG amended for Society collective agreement use (the form OPG points

to in this case), which managers were required to complete and comply with. This form

includes a box requiring confirmation of communication with the Society in compliance

with Article 65.3. It is apparent from the references to “Gang”, “Chief Steward”, and to

the PWU that this was as the Society claims a PWU collective agreement form adapted

for the purpose.

28

71.

Arbitrator Bloch required the Society to particularize any alleged violations of

Article 65.3 after the date of the Award to OPG and gave OPG two weeks to investigate

and respond, following which the Society could refer any dispute to him for adjudication.

He cautioned OPG that he had the authority to issue a monetary penalty in cases of

“wanton disregard for compliance with article 65.3” and remained seized.⁷

72.

Arbitrator Bloch’s 2008 Award concerned further instances of alleged non-

compliance by OPG with Article 65.3 regarding “late notification and/or extensions”

further to his 2007 Award. Arbitrator Bloch ordered OPG to ensure that Article 65.3 was

complied with going forward and to pay “damages” (not a penalty) in the apparently

arbitrary amount of $5,000.00 to “fully and finally resolve all alleged violations of

Article 65.3 which are or may be alleged to have occurred up to and including November

24^th, 2008”. This was likely also in the nature of a not so called consent Award.

73.

The 2007 and 2008 Awards did not resolve the issue because Arbitrator Bloch

revisited what he described as the parties’ vexing Article 65.3 problem in his 2013

Award. He reviewed the situation presented to him, which he stated included 44

grievances concerning the application of Article 65.3. The actual issue Arbitrator Bloch

proceeded to determine was whether Article 65.3 applies to the assignments outside the

Society’s bargaining unit contemplated by Article 5. In paragraph 22, Arbitrator Bloch

dismissed “this grievance”. He held that the Society “has not, by operation of the

collective agreement, retained any rights provided by Article 65.3 for employees working

outside the jurisdiction of the Society’s recognition clause”. He held that he therefore

had no jurisdiction to “adjudicate the application of Article 65.3 (Advance Planning) to

Society members who would be working outside the bargaining unit”.

74.

In coming to his final determination, Arbitrator Bloch wrote in paragraph 18 as

follows:

18.

I find that the phrase in Article 5.1.3: “Society-Represented employees who are

temporarily assigned to positions outside the bargaining unit shall have access to

all…” is modified by the sentence, “Except where otherwise specified in this

Agreement….” In effect, that ph[r]ase was intended for situations where the

parties wished to give Society-represented employees greater rights and

privileges than mere access to a limited number of collective agreement articles.

That is not the case with Article 65.3. For Article 65.3 to apply to work

⁷It is not clear where this “authority” came from. Unless the collective agreement specifically gives

grievance arbitrators authority to impose monetary penalties, an arbitrator’s monetary jurisdiction is limited

to compensatory damages. The OPG-Society collective agreement herein does not give grievance

arbitrators monetary penalty jurisdiction. Nor did any previous collective agreement between the parties so

far as I am aware (and I have been arbitrating grievances under the parties’ collective agreement for some

25 years).

29

assignments outside the bargaining [S]ociety jurisdiction, the parties would have

had to agree in a clear and unequivocal manner that Article 65.3 would

specifically apply, prior to filling a work assignment outside the Society

bargaining unit. The parties did not.

75.

In paragraph 20 Arbitrator Bloch cited an example of the mischief he concluded

would be caused by a determination that Article 65.3 applies to temporary assignments to

a management role (i.e. outside the Society’s bargaining unit); namely, that such an

assignment would then be governed by Article 65.6 and require the position to be

“advertised”, which I take to mean it would have to be posted and filled in accordance

with that provision.

76.

I agree with Arbitrator Bloch’s May 15, 2013 determination that Article 65.3 does

not apply to temporary work assignments outside the Society’s bargaining unit. With

respect, however, I find his analysis insufficient for purposes of the real dispute between

the parties.

77.

Unlike Article 65.5, there is nothing in Article 65.3 itself that suggests it does not

apply before a Society-represented employee leaves the bargaining unit to take an

assignment outside the bargaining unit. Article 5.1.3 states that: “Except where

otherwise specified in this Agreement, Society-represented employees who are

temporarily assigned to positions outside the bargaining unit shall have access to all

benefits, plans or entitlements under” the provisions specified, which include Article 65,

“for the full duration of the assignment.” Article 65.5 begins by clearly stating that it

does not apply to rotations “outside the Society jurisdiction”, and that Article 5 applies to

such assignments. Article 65.3 obviously comes before and forms no part of Article 65.5

– or vice versa. The only part of Article 65 that the collective agreement specifies is

excluded from application to bargaining unit employee assignments outside of the

Society’s jurisdiction is Article 65.5. That is the only “otherwise specified” provision.

The application of no other Article 65 provision, including Article 65.3, is excluded.

78.

However, Article 5.1.1 specifies that the Society “shall be given prior notice of

any temporary assignment exceeding three months’ duration that OPG considers outside

the bargaining unit, along with a rationale for the proposed exclusion”. Clearly, the

Society is entitled to notice of longer than 3-month assignments of bargaining unit

employee outside the bargaining unit. The necessary implication of the specified

entitlement is that the Society is not entitled to notice of such assignments for 3 months

or less. As a notice provision specific to temporary assignments outside the bargaining

30

unit Article 5.1.1 applies⁸. This is the reason Article 65.3 does not apply to temporary

assignments outside the bargaining unit.

79.

Arbitrator Bloch did not explain why he didn’t consider the Society’s right to

notice under Article 5, notwithstanding that he referenced the provision in the Award.

80.

Further, the potential mischief imagined in paragraph 20 of Arbitrator Bloch’s

2013 Award does not exist. It does not follow from the Article 5.1.1 notice requirement

for more than 3-month long temporary assignments outside of the bargaining unit that a

management or any other non-bargaining unit position has to be posted or filled in

accordance with Article 65.6. The opening words of Article 65.6 specifically state that it

does not apply to relief or rotations which by Article 65.2 definition are short-term

temporary assignments. It is apparent from Article 65.6 read as a whole that it only

applies to permanent bargaining unit “vacancies”, and not at all to “vacancies” that occur

as a result of an Article 65 short-term relief or rotation assignment, or a temporary

assignment outside the bargaining unit, which is what Article 5 contemplates and speaks

to. Article 65.6 does not apply to any management of other non-Society bargaining unit

position, temporary or otherwise. I will have more to say about this below.

(ii)

Mitchell Award

81.

Arbitrator Mitchell’s June 9, 2021 Award concerned the application of Article

10.3(a) to rotations of less than six months duration, but also considered the application

of Articles 65.3 and 65.5.4, with a focus on the meaning of the term “vacancy”.

Arbitrator Mitchell stated (in paragraph 26) that he was not ruling on the meaning of the

words “selected for rotation” in Article 65.5.4, “and whether that refers to all processes

by which management determines who will be assigned a rotation”, or on whether all

rotations are voluntary.

82.

Article 10.3(a) is not in issue before me. (Indeed, neither party referenced the

provision in their submissions.) However, in the process of determining the grievance

before him Arbitrator Mitchell considered the meaning and application of the provisions

in Article 65 which are directly in issue before me, and I am obliged to consider his

assessment of those provisions.

⁸Article 5.1.2 provides that the Society “shall continue to represent employees who have been temporarily

removed from their regular positions to perform work outside the bargaining unit for the first three months

of the temporary assignment”, and that dues “shall be deducted and remitted to the Society for the entire

period of the temporary assignment of a Society member while performing work outside the bargaining

unit.” The parties have clearly and unequivocally agreed that the Society has the specified notice and

representation rights for bargaining unit employees who are assigned to work outside the bargaining unit.

That is, the Society’s jurisdiction extends to employees outside the bargaining unit to the extent specified in

Article 5.

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83.

Arbitrator Mitchell notes (in paragraph 26) that the term “vacancy” appears some

140 times in the collective agreement. I don’t consider it necessary to check his count.

However, I note that nowhere in the Award does he reference the plain and ordinary

labour relations meaning of “vacancy” (i.e. “an unoccupied position”, which implies an

existing “unoccupied ongoing position”).

84.

Ambiguity is not as rampant in the collective agreement as the Mitchell Award

suggests. That may appear to be the case at first glance, but a fully contextualized labour

relations reading of the collective agreement provisions in issue in accordance with the

rules of collective agreement interpretation suggests otherwise. Although better wording

could have been used, I do not agree with the conclusion (in Mitchell Award paragraphs

27-28) that either the heading of Article 65 or the language of Article 65.6.1 creates an

ambiguity about the meaning of “vacancy” or whether a rotation involves a form of

vacancy.

85.

As noted above, a grievance arbitrator’s job is to interpret the collective

agreement by giving the words used by the parties their apparently intended meaning.

The plain and ordinary meaning, same word same meaning, and words not to be inferred

or ignored presumptions are all rebuttable, either by objective evidence of contrary

intention or by an appropriate contextual reading of the provision(s) in issue. The

arbitrator must consider whether it is necessary to depart from the plain and ordinary

meaning if it is apparent that a different meaning is intended, whether the same word

necessarily has a different meaning in different subject areas of the agreement, or whether

it is necessary to imply or ignore words in order to give the apparently intended

purposeful effect of the provisions in issue. It is especially important to be sensitive to

such considerations in a collective agreement as lengthy and complex as this one between

OPG and the Society. In a collective agreement like this one the appropriate internal

interpretation context may be the provisions in the subject area, not the entire collective

agreement read as a whole.

86.

Arbitrator Mitchell concluded (in paragraph 28) that notwithstanding the

numerous collective agreement differences between the parties, the focus of the dispute

before him concerned the meaning of the term “vacancy” having regard to what he

considered to be the ambiguities in Articles 10.3(a) and 65.

87.

I agree with Arbitrator Mitchell that Article 65.6.1 can be read as meaning that

“vacancy assignments, which are not relief or rotational assignments, must be advertised”

and that this “interpretation is supported by the heading which states “Selections for

Assignments Other Than Relief or Rotations” which suggests it is the assignments, not

32

the vacancies which include the categories of relief and rotational assignments”

(underlined emphasis supplied). Arbitrator Mitchell went on to conclude that “while this

appears to be the most sensible interpretation, it is not unambiguous”. I agree that this

interpretation of the opening words of Article 65.6.1 is the most sensible, but I

respectfully disagree with his conclusion that the language is nevertheless ambiguous.

88.

The fact that collective agreement language can be read in more than one way

does not necessarily mean it is legally ambiguous. Not all possible interpretations are

equal. The question is not whether collective agreement language can be read in more

than one way, but whether a particular interpretation is compelling. An interpretation

which is the “most sensible” is prima facie the appropriate one.

89.

In this collective agreement selection for relief or rotation assignments is

specifically dealt with in other parts of Article 65 (Article 65.4.2 for relief assignment

selection, 65.5.2 for rotation postings posting, and Article 65.5.3 for rotation selection)

and I am satisfied that in the context of Article 65 read as a whole the only reasonable

interpretation is that Article 65.6 (which obviously includes Article 65.6.1) applies only

to permanent assignments, which are necessarily permanent vacancies.

90.

Arbitrator Mitchell concluded (in paragraph 29) that OPG’s submission that

“there is a distinction in the collective agreement between “work assignments” that are

generally short term and made as relief or rotational assignments, and ongoing positions,

the filling of which are vacancies and governed by Article 65.6.1.”, the implication being

that “work assignments are short term while vacancies are long term and ongoing”, was

not compelling on the language of the agreement. Although he accepted that there is a

clear difference between ongoing and short-term positions, he found that it did not follow

that there is a “definitional correlation between those two distinctions on the one hand,

and vacancies and work assignments on the other”, because, for example, the Article

65.6.1 reference to “all vacancies for assignments” indicates that vacancies are

assignments, and “this would seem to be a “work assignment”, even though the word

“work” is not used.” He continued that:

“More importantly, while the term “work assignment” is used in Article 65.1 and

elsewhere to refer explicitly to relief and rotational positions, or to short term positions

for temporary employees, the same precise term is also used in other contexts, such as

Articles 3.1 [definition of Probationary Employee classification], 55.2 [definition of

Regular Work Headquarters], and 72.2.8 [dealing with Project Crew work schedule

assignments], where the words “work assignment” appear to have a more generic

meaning and do not appear to refer exclusively to short term assignments.”

91.

It should be apparent from the above that I disagree. With respect, rather than

making the point, Arbitrator Mitchell’s analysis serves only to demonstrate the futility of

33

taking an overly broad contextual view that includes contexts that have nothing to do

with the subject area concepts in issue. I agree that there is a clear difference between

ongoing and short-term positions. There is equally a clear difference between ongoing

positions and short-term or temporary assignments. Under the collective agreement

between OPG and the Society, an ongoing position is not an assignment. Employees are

selected to fill vacancies in ongoing positions. Employees are “assigned” to either fill

temporary short-term staffing gaps, or to temporary short-term non-ongoing work.

92.

I agree with Arbitrator Mitchell (in his paragraphs 30-31) that the specific

definitions within a collective agreement Article apply to the substantive provisions

within that Article and take precedence over the heading of the Article (something that is

generally true, and particularly if the heading is ambiguous or even misleading). But

specific definitions for the purpose of the operation of the substantive collective

agreement provisions to which they apply do not necessarily apply to or inform the

interpretation of other collective agreement provisions that have a different purpose. I

also agree with the conclusion that if the parties had wanted relief and rotational

assignments to be ways in which vacancies could be filled they could have done so. In

fact the parties have done the opposite. They have structured Article 65 in a manner that

makes it clear that neither relief nor rotation assignments can be used to fill “vacancies”.

Both the inherent and the Article 65 definition of “relief” (in particular the purposive

Article 65.4.1) preclude the use of such assignments to fill vacancies. Article 65.4.4

specifically states that relief assignments “will not be used continuously to avoid

advertising [i.e. posting and filling] … an ongoing [i.e. permanent] position.” And

Articles 65.2 and 65.5 clearly state that “rotations” are assignments to “positions” that are

not ongoing.

93.

Arbitrator Mitchell did not consider the contextual relationship (or lack of

relationship) between Article 10.3 as a whole (not just clause (a)) and Article 65. Article

10.3 is a general bargaining unit information provision intended to ensure that the Society

has the information about bargaining unit employees necessary for it to properly carry out

its duties and responsibilities as their collective bargaining. The only Society information

provision in Article 65 is 65.3, which deals with the movement of bargaining unit

employees into relief or rotation assignments which are by definition “short-term”

(meaning, for no more than 90 days or up to 1 year with by mutual agreement in the case

of relief; and for no more than 2 years unless mutually agreed in the case of rotations) –

and which I am satisfied do not fill “vacancies”.

94.

Although he mentions the collective agreement definitions of “relief” and

“rotations”, Arbitrator Mitchell did not examine them. Article 65.2 defines “relief” as

temporary short-term assignments of an individual (which must be a bargaining unit

34

employee) to positions that are ongoing or are expected to be ongoing for up to 3 months.

(Article 65.4.3 specifically limits a relief assignment to 90 days unless the parties to agree

to extend it “for up to one year”.) Article 65.2 defines “rotations” to be assignments for

more than 3 months but not longer than 2 years (subject to the parties agreeing to

continue a rotation beyond 2 years – Article 65.5.2) to positions not expected to be

ongoing.

95.

In paragraph 32 of his Award Arbitrator Mitchell held that “the wording of

Article 65.4” (sic – he obviously meant Article 65.5.4) is ambiguous, and went on to

consider the extrinsic evidence before him. He concluded (in paragraph 40) that the

Society’s extrinsic evidence was not helpful, but that OPG’s evidence of past practice,

including the practice of providing Society Unit Directors with email notification of

rotation assignments of less than 6 months duration pursuant to the 2007 Bloch Award –

which concerned Article 65.3 and had nothing to do with Article 10.3(a) – provided

compelling clarification of the Article 10.3(a) ambiguity, and that in the result this

provision “does not require OPG to provide the Unit Directors of the Society with notice

of the appointment of individuals to rotations of less than six months”.

96.

Notwithstanding my concerns about his analysis, I agree with Arbitrator

Mitchell’s conclusion that Article 10.3(a) does not apply to rotations of less than 6

months duration. Although he did not specifically determine the meaning of “vacancies”

in Article 10.3(a), the necessary implication his Award is that the extrinsic past practice

evidence establishes that the parties’ shared understanding is that an assignment to

rotations of less than 6 months duration are not assignments to “vacancies”. I agree with

that as well.

97.

But with respect, Article 10.3(a) doesn’t apply to rotations at all, and it isn’t

necessary to resort to extrinsic evidence to arrive at this conclusion. Paragraph 30 of the

Mitchell Award notes that the parties have defined relief and rotational assignments in

Article 65.1 (by which he must have meant Article 65.2), and that if the parties had

wanted relief or rotation to constitute a form of vacancy it would have been easy for them

to say so and they have not. This is true, but because relief and rotation assignments are

not assignments to a “vacancy” there was no need for the parties to do so.

98.

When employees go on vacation or are temporarily absent from work due to

illness or injury their positions are not left vacant within the labour relations meaning of

the term. An employee’s temporary absence from work does not create a vacancy. It

leaves a temporary staffing gap that the collective agreement contemplates can if

necessary be filled with a relief assignment. By collective agreement definition a relief

assignment is not an assignment to a vacancy, either within the meaning or Article

35

10.3(a) or at all. Similarly, an employee who accepts a rotation assignment has an Article

65 qualified right of return to the regular position s/he leaves behind a staffing gap that

can be filled with a relief assignment, not a vacancy that must be filled in accordance

with the Article 65.6 selection provisions.

99.

In summary, the full answer to the Article 10.3 question before Arbitrator

Mitchell is that rotations are by collective agreement definition not assignments to

vacancies and therefore 10.3(a) does not apply (and grievance therefore dismissed).

Notwithstanding the sometimes awkward language used, there is nothing in the collective

agreement that suggests that the terms “vacancy” or “vacancies” are used in other than

their normal labour relations sense; that is, that vacancies are empty ongoing positions.

The Article 65.2 definition of rotations specifies that such assignments are not used to fill

staffing gaps in ongoing positions. As per the more fulsome analysis below, a rotation

cannot be used to fill a vacancy. Article 65 read as a whole requires a vacancy to be

filled using the comprehensive selection process stipulated by Article 65.6.

(c)

The Collective Agreement Interpretation and Application

(i) The Society’s Complaint

100. To repeat (because of the length of this Award to this point), the Society’s

complaint in the grievance as filed is that since at least February 2019 OPG has been

using continuing or “perpetual” rotation assignments to staff ongoing MP-4 Coordinator

Real Time Operations Team positions for more than 2 years without the Society’s

consent, contrary to Article 65.5.2. The grievance claims that rotations are not supposed

to last longer than 2 years, and that the expectation is after 2 years a rotation assignment

either becomes a “permanent/regular” position or the rotation stops. The grievance

alleges that during 2019-2021 OPG used 3 “perpetual rotations” in the Real Time

Operations Team to “plug a permanent hole created in the MP-4 shift schedule after the

MP-4 regular staff complement was reduced from 6 to 5 during Q3 2019”; to provide

coverage while regular MP-4 and MP-5 shift staff trained for MP-5 and MP-6 positions;

to provide coverage for regular MP-5 and MP-6 positions whose incumbents were

assigned to other short-term work; and to provide coverage for the multi-year absences of

employees Beard, Wong and Sauer.

101. The grievance further complains that OPG employed step-ups that are meant to be

used as temporary stopgaps and NBAs that do not exist as a job classification in the

collective agreement “to fill staffing holes in the shift schedule created when regular MP-

4’s, MP-5’s and MP-6’s were stepped-up to train or to do project work”. The Society

claims that training and project needs must be filled on a relief, rotation,

36

regular/permanent or temporary basis, and that formal offer letters must being issued for

the latter three “categories”.

102. Although the Society’s grievance does not specifically allege that any use by OPG

of rotations to fill staffing gaps in the Real Time Operations Team is contrary to the

collective agreement, as the matter infolded before me, the Society alleged just that;

namely, that any use of rotations to fill staffing gaps in ongoing positions (in this case in

the Real Time Operations Team MP-4 positions) is contrary to Article 65.2. This

allegation was pursued in the Society’s November 1, 2021 Hearing Brief delivered well

before the January 12, 2022 hearing (particularly in paragraphs 20-22, 27, 36 and 38),

and in its oral submissions. And OPG joined issue with the Society in that respect.

103. The Society’s claim is therefore four-fold:

 first, that rotations cannot be used to fill staffing gaps in ongoing positions;

 second, that back-to-back continuous rotation assignments to fill the same staffing

gap for more than 2 years without its consent are not permitted in any event, even

if the assignments are filled by different employees;

 third that rotation assignments that last longer than 2 years without the Society’s

consent become permanent positions that must be posted and filled in accordance

with Article 65.6; and,

 fourth, that NBAs and step-ups are not work classification or assignment

categories independent of the relief, rotation, regular/permanent or temporary

assignments identified in the collective agreement, and that what OPG has been

referring to as NBAs and step-ups must be properly designated as one of the

classifications identified in the collective agreement.⁹

(ii)

The Operation of Article 65

104. The necessary analysis involves some repetition.

⁹I note that the collective agreement distinguishes between “Temporary Employees” and temporary

assignments. Pursuant to Article 3 a temporary employee (which includes the sub-category of “Student

Employee” is “an employee who is hired for short-term work assignment which is not ongoing (i.e.

normally 12 months or less and not extending beyond 24 months).” This is different from a temporary

assignment of a “Regular Employee”, which is effectively what is in issue in this case.

37

105. Notwithstanding the numerous references to “vacancies” and “assignments” in

other subject areas of the collective agreement, the only provision that speaks to the use

of rotations is Articles 65, and the only reference to “vacancies” in the provision is in

Article 65.6. As should be apparent from my analysis of the Bloch and Mitchell Awards,

I am satisfied these provisions read as whole provide the appropriate collective agreement

interpretation context.

106. The first thing that must be acknowledged is that the Article 65 language selected

by the parties is sometimes less than apt for the apparent purpose. However, this is not so

much so that it makes the intended interpretation or application of the provisions unclear.

(And I note that neither party alleged ambiguity, or its often pleaded in tandem partner

estoppel.)

107. The heading of Article 65 is “Vacancies (Relief, Rotations and Selections)”. It is

apparent that a better heading would simply be “Relief, Rotations and Vacancies”

because it is clear that relief and rotation are intended to be temporary short-term

assignments intended to fill temporary staffing gaps in an ongoing position in the case of

relief, or to staff temporary non-ongoing work programs in the case of rotations. Neither

relief nor rotation assignments are intended to fill “vacancies”.

108. The definitions in Article 65.2 read together with Articles 65.4.1 and 65.4.3 in the

case of “relief” and Article 65.5 in the case of “rotations” are the key to discerning the

meaning and application of Article 65 as a whole.

109. The heading of Article 65.1 is “Intent”. It states that the purpose of Article 65 is

to: “To provide open, fair access to career opportunities and enable OPG to optimize

staffing requirements over time.” Such general statements of collective agreement intent

serve to inform the interpretation of the substantive operational provisions in the Article.

Insofar as specific operational provisions indicate a more focused attention by the parties,

the rules of collective agreement interpretation require that in the event of conflict they

prevail over a general statement of intent.

110. Article 65.2 begins by defining “Relief/Rotations” together as short assignments

to duties outside of normal job duties. Article 65.2 then more specifically defines and

distinguishes between “relief” and “rotations”. It specifies that “relief” assignments are

short-term temporary assignments “normally” up to 3 months long to positions that are or

are expected to be ongoing positions. It more specifically defines “rotations” as

assignments normally for greater than 3 months but not more than 2 years in positions not

expected to be ongoing.

38

111. Article 65.4.1 further refines the Article 65.2 definition of “relief” by making it

clear that the purpose of relief is threefold:

(a)

(b)

to cover staffing gaps due the sort-term absences,

to bridge staffing gaps (created by release delays, for example) for

selections or rotations (which also serves to underline the distinction

between relief and selections for vacancies and rotation assignments, as

well as between vacancies and rotation assignments), and

(c)

for short-term emergency situations.

112. Article 65.4.2 stipulates that the process for selecting employees for a relief

assignments “should be” quick and provide fair opportunities to employees. This gives

OPG very broad latitude. Article 65.4.3 permits a relief assignment to be extended

beyond the Article 65.2 three month limit by agreement, and makes it clear that absent

agreement the duration of relief assignments is limited to “90 days”. It is unfortunate that

the parties used “3 months” in Article 65.2 and “90 days” in Article 65.4.3, but being the

more specific provision – and since the number of days in a month varies – Article 65.4.3

must prevail.

113. As already noted above, Article 65.4.4 operates to prohibit OPG from using

continuous relief assignments to avoid “advertising” (i.e. posting) rotations or “ongoing

positions” (i.e. permanent position vacancies). This serves to emphasize the distinction

between relief assignments and filling ongoing positions.

114. Article 65.4.5 straightforwardly deals with pay treatment for relief assignments.

115. The Article 65.2 definition of “rotations” must be read together with the extensive

provisions in Article 65.5 for rotations within the Society bargaining unit. Article 65.5

begins by stating, as its heading suggests, that it does not apply to rotations outside the

Society’s jurisdiction and that Article 5 does (which indicates that the parties

contemplated Article 65 defined rotation assignments outside the Society’s bargaining

unit). Article 65.5 further refines the definition of “rotations” by stipulating that:

“Rotations are used … for situations … between short-term relief and ongoing positions”.

That is, rotations are not to be used for relief purposes or to staff ongoing (permanent)

positions. Article 65.5 also provides that upon completion of a rotation assignment a

non-surplused employee “will return to their original position or a comparable position

normally within the sending unit …” By operation of Articles 5.1.3 and the exclusion in

65.5 read together, an employee assigned to a rotation outside the Society’s bargaining

39

unit does not have this “return to position” guarantee – or any other Article 65.5

entitlement.

116. Article 65.5.1 sets out 7 “purposes” of rotations that the heading of the provision

describes as “principles” consistent with the Article 65.1 general statement of intent.

OPG relies on the “principles” or purposes or rotations outlined in Article 65.5.1,

particularly clauses (b) and (g).

117. The essence of the stated Article 65.5.1 “principles” is that the purpose of

rotations is to promote employee career development and provide OPG with workplace

management flexibility – including allowing OPG to staff temporary work programs and

work load requirements, and give OPG staffing flexibility for “regular positions as a

result of employees being provided rotational opportunities and temporary relief

assignments” (clauses 65.5.1((b) and (g), respectively).

118. A stated purpose of a collective agreement provision and the substantive language

of the provision must be read in a contextually coherent manner. There is nothing in any

of clauses 65.5.1(a) through (f) that is inconsistent with the Article 65 definitions of relief

as “assignments normally greater than 3 months but not exceeding 2 years in duration in

positions which are not expected to be ongoing” (Article 65.2, emphasis added) or

rotations “used to accomplish work for situations that occur between short-term relief and

ongoing positions” (Article 65.5, emphasis added). However, clause 65.5.1(g) states that

a purpose of rotations is to provide “flexibility in resourcing regular positions as a result

of employees being provided rotational opportunities and temporary relief assignments”.

The plainly stated clause 65.5.1(g) purpose is to permit ongoing positions left temporarily

unstaffed to be backfilled with a rotation in, which on the evidence is what OPG has been

doing in the Real Time Operations Team. This is inconsistent with the foundational

Article 65 definition of rotations as temporary assignments in non-ongoing positions

between relief and ongoing positions because “regular” can only be read as “ongoing” or

“permanent” (and certainly not as temporary).

119. Recall that a fundamental rebuttable presumption in the search for objective

contextual labour relations collective agreement meaning is that the parties purposely

chose the language used to express their shared intention. A statement of purpose is a

statement of intention. But the clause 65.5.1(g) purpose is irreconcilably inconsistent

with the collective agreement substantive definition of rotations – a statement of the

parties shared intention of the use of rotations – derived from Article 65.2 and the

opening paragraph in Article 65.5 read together.

40

120. The parties could not have intended this irreconcilable internal collective

agreement conflict. They cannot in any event coexist. Which one must give way? I am

satisfied that the parties could not have intended a 3-line statement of purpose to turn the

operation of a comprehensive 8-page Article 65 on its head. Giving clause 65.5.1(g)

precedence would require reading “which are not expected to be ongoing” and “between

short-term relief and ongoing positions” in Articles 65.2 and the opening paragraph of

Article 65.5 respectively out of the foundational definition of “rotations”. It would also

effectively eliminate the collective agreement distinction between relief and rotations as a

practical matter (other than perhaps for step-up purposes). On the other hand, giving

meaning to the collective agreement definition of rotations would effectively render

clause 65.5.1(g) null and void. It can only be one or the other.

121. The reference to “regular position” in the latter is problematic because the plain

and ordinary meaning of “regular” is “usual, normal” – or dare I say it: “ongoing”, and

Articles 65.2 and 65.5 read together specify that rotations are not to be used to fill

ongoing positions. As noted above, an articulated collective agreement “principle” or

“purpose” must give way to a specific contradictory substantive provision. Article

65.5.1(g)

122. A grievance arbitrator does not have jurisdiction to amend a collective agreement.

But if faced with an irreconcilable conflict within a collective agreement provision, the

arbitrator must choose the interpretation that best fits the design and structure of the

provision read as a whole. I am satisfied that permitting the clause 65.5.1(g) tail to wag

the Article 65 dog would do far more violence to the apparently intended operation of the

collective agreement than doing the opposite. I am satisfied that the comprehensive

substantive provisions in Article 65 must take precedence. The incongruous purpose

clause 65.5.1(g) can therefore be given no collective agreement effect and must be

considered null and void.

123. Returning for a moment to “relief”, the use of relief to cover the short-term

staffing gaps for rotations purpose articulated in Article 65.4.1(b) creates a prima facie

conflict because the use of relief is by collective agreement definition limited to

temporarily staffing a position that is or is expected to be an ongoing position and

“rotations” are by collective agreement definition (Articles 65.2 and 65.5 read together)

assignments to positions that are not or expected to be ongoing. This part of Article

65.4.1(b) must mean that relief can be used to fill a gap in an ongoing position left as a

result of an employee temporarily leaving the ongoing position on a rotation assignment.

124. Article 65.5.2 speaks to the manner in which rotation assignments are filled

depending on whether the assignment is expected to last less than 6 months or 6 months

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or longer. It specifies that absent the Society’s agreement rotations expected to last 6

months or longer must be posted (meaning that rotations for periods less than 6 months

need not be posted regardless of the Society’s wishes), and that the scope of a rotation

posting is up to OPG to determine. Nothing prevents OPG from posting a rotation

expected to last less than 6 months, but it is not required to do so. Article 65.5.2 also

specifies that a rotation “will not” continue for more than 2 years absent “mutual

agreement” (i.e. unless the Society agrees), unless it is identified (by OPG) as an

“ongoing training position”.¹⁰Article 65.5.2 also specifies what a job posting “should”

include.

125. Article 65.5.3 describes the “optimal” selection process for a rotation, and

specifies that rotations will be voluntary, without distinguishing between rotations on the

basis of their expected length or whether or not they are posted. This means that all

rotations within the bargaining unit are voluntary.

126. Article 65.5.4 specifies that employees selected for a rotation “will be” provided

with a letter that states the “nature, terms and conditions of the assignment, which

“should be mutually acceptable” in advance of the rotation. This provision also applies

to all rotations, regardless of their expected length or whether or not they are posted.

Although it would be good labour relations practice to do so, Article 65.5.4 does require

OPG to provide the Society with a copy of such letters. The last sentence states that the

terms and conditions of a rotation assignment “should be mutually acceptable”. Since the

Society is entitled to Article 65.3 notice of a rotation assignment and the Society is not

mentioned in this provision, I interpret that as meaning mutually acceptable to OPG and

the employee (who may of course week advice from the Society).

127. Article 65.5.5 alters the statement in the opening paragraph of Article 65.5 that an

employee who accepts a rotation assignment “will return” to their original or a

comparable position “normally within the sending Unit” to a guarantee that the employee

“can return” to their original position “if available”, or to a comparable position

“normally within the sending Unit”. I need not delve further in the difference or how it is

resolved for purposes of this Award – although Article 65.5.5 is the more specific

provision.

128. Article 65.5.6 specifies that rotation terms and working conditions “will” comply

with all applicable collective agreement provisions, which must include Article 66.4 if

the rotation assignment is to a higher-rated job.

¹⁰There is no evidence or suggestion that any of the Real Time Operations Team positions have been

designated “ongoing training positions”.

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129. Throughout Article 65.5, the parties have used the terms “should” and “will”

instead of “must” or “shall”. There is a line of arbitral authority (much of it old)

concerning the distinction, much of which has an “angels dancing on the head of a pin”

quality to it. The generally accepted plain and ordinary meaning of “should” is that it is

the past tense of “shall” and expresses a duty or obligation, and effectively also means

“must”. Similarly, a common use of “will” is as an auxiliary to express compulsion, as in

commands, effectively meaning the same thing as “shall” or “must”. I am satisfied that

for purposes of Article 65, “should” and “will” mean that the requirements the terms are

attached to are compulsory, not optional. Similarly, “will not” is equivalent to

prohibited, so that “…the rotation will not continue beyond two years …” means that a

rotation beyond 2 years in duration is prohibited (subject to the mutual agreement and

identified training position exceptions).

130. Although Article 65.5 specifically states that Article 5 applies to rotations

“outside the Society’s jurisdiction”¹¹, nothing in Article 65 mentions relief assignments

outside of the Society’s bargaining unit, and Article 5 only refers to temporary

assignments outside of the Society’s bargaining unit without reference to either “relief”

or “rotations”. The point is that the language of Article 5 does not limit temporary

assignments to rotations. There is nothing in Article 5 that suggests that a bargaining unit

employee cannot be given a relief assignment outside of the bargaining unit – although

given the structure of the workplace that would be odd. The fact that there is no

reference in Article 65.4 to Article 5 similar to the statement in Article 65.5 is only

suggestive, but Article 5.1.3 states that unless “otherwise specified” a Society-

represented employee temporarily assigned outside the bargaining unit continues to be

entitled to the benefit of the listed collective agreement provisions (which includes

Article 65), and the exclusion of Article 65.4 is not specified. Pursuant to Article 5.1.3,

Article 65 would therefore apply to a relief assignment (i.e. a temporary assignment to an

ongoing position) outside the bargaining unit.

131. What the exclusion of Article 65.5 from application to assignments “outside the

Society jurisdiction” means is that while Article 65.2 continues to apply, there is no

requirement that “at the completion of the rotation , the employee will return to their

original position or a comparable position …” (Article 65.5); that the Article 65.5.1

“principles” do not apply; that such rotations need not be voluntary (Article 65.5.3); that

employees so assigned are not entitled as of collective agreement right to an Article

¹¹The heading of Article 5 is “Temporary Assignments”. In the opening paragraph the parties

acknowledge that bargaining unit employees may be temporarily removed to perform work outside of the

bargaining unit (and that employees from outside the bargaining unit may be temporarily assigned to

bargaining unit work). The Article 5.1 provisions use the term bargaining unit and “Society jurisdiction”,

which is necessary because as noted above Article 5.1.2 provides that the Society continues to have

jurisdiction over employees removed from the bargaining unit for (only) the first 3 months of a temporary

assignment outside of the unit and is entitled to dues for the entire duration of such an assignment.

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65.5.4 letter, or to the more specific Article 65.5.5 guarantee of return to the employee’s

original or a comparable position; and that the Article 65.5.6 terms and working

conditions provision does not apply. However, because Article 65.4 is not excluded all

of its terms apply to relief assignments outside the bargaining unit.

132. Further to my commentary on the Mitchell Award, above, there is no reference to

any version of the term “vacancy” or “vacancies” anywhere in Articles 65.2, 65.4 or 65.5.

The first time “vacancies” appears is in Article 65.6.1, which distinguishes between

“vacancies for assignments” and relief and rotation. Notwithstanding the awkward

wording of the Article 65.6 heading and in the opening paragraph in Article 65.6.1, it is

clear that Article 65.6 does not apply to relief or rotation assignments. This is consistent

with the “more specific provision” rule of interpretation which means that the Article 65

selection processes specific to relief and rotations apply to them, not Article 65.6.

133. To repeat, the plain and ordinary labour relations meaning of “vacancy” is “an

unoccupied position”. The reference to “ongoing positions” is important. The plain and

ordinary meaning of “ongoing” is “continuing without termination or interruption”. A

labour relations synonym is “long-term” or “permanent”. A labour relations antonym is

“short-term” or “temporary”. The significance of this is that the foundational definitions

of Article 65 make it clear that “relief” is available to temporarily fill staffing gaps in

positions that are or are expected to be ongoing (i.e. long-term, permanent) positons on a

short-term basis only, that the use of “rotations” is limited to temporary short-term

assignments to positions that are not ongoing, and that neither of them is intended to fill

“vacancies”. Article 65 read as a whole must mean that neither relief nor rotations can be

used to fill a “vacancy” within the meaning of the collective agreement. That is what

Article 65.6 is for.

134. I can now turn to Article 65.3 which I skipped over in my chronological review of

Article 65. There is very little to add to the commentary on the Bloch Awards in

paragraphs 77-80, above. I am satisfied that Article 65.3 means that OPG management

must provide the “local Society representative” (which presumptively means the Society

Local Vice-President or Unit Director, or their delegate) with 2007 Bloch Award

approved notice of the nature, expected duration, selection process, and “whether there is

an expectation that the work assignment will result in an ongoing position” in the case of

every work assignment relief and rotation assignment expected to last longer than 10

days. This means every such relief and rotation assignment within the Society bargaining

unit pursuant to Article 65.

135. As already noted above, Article 65.3 does not apply to assignments outside the

Society bargaining unit. Those are governed by Article 5, more particularly Article 5.1.1

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which specifies that the Society shall be given the specified prior notice of any longer

than 3 months temporary assignment outside the bargaining unit. The necessary

implication is that the Society is not entitled to notice of such assignments of for 3

months or less. As a notice provision specific to temporary assignments outside the

bargaining unit Article 5.1.1 applies and Article 65.3 does not.

136. In the Article 65.3 notation in parentheses after “to discuss the nature of the

requirement” the parties chose to use the phrase “e.g. relief, rotation”, instead of “i.e.

relief, rotation”. Using “e.g.” prima facie suggests there may be other forms of

temporary assignment to which the provisions applies, as opposed to “i.e.” which would

suggest the application of the provision is limited to the specified assignments. I am

satisfied that in this collective agreement it doesn’t matter because relief and rotation are

the only collective agreement sanctioned forms of temporary assignment.

137. “Non-Base Assignment”, “NBA”, and “step-up” are not terms found anywhere in

the OPG-Society collective agreement. Whether Arbitrator Bloch imposed or thought it

appropriate to accept the parties’ apparent agreement to adapt a NBA form used by OPG

in its dealings with the PWU for use under the Society collective agreement in his 2007

Award, this does not give the form any special status under the Society collective

agreement. It certainly didn’t create a separate category of temporary assignment.

Subject to limited statutory prohibitions, the parties are free to amend their collective

agreement as they wish, but they must do so directly themselves, not surreptitiously

through a grievance arbitrator’s Award, at least not through one that is not specifically on

consent. As a rights arbitrator, Arbitrator Bloch had no jurisdiction to amend the

collective agreement, and his 2007 Award did not make the NBA form part of the OPG-

Society collective agreement.

138. Of course this does not mean that OPG cannot use the NBA form for collective

agreement administrative purposes. The real question is: what is an “NBA”? A NBA is

any assignment of a bargaining unit employee away from their regular, original, or base

position (which 3 terms are synonymous for purposes of this collective agreement). The

collective agreement forms of NBAs are relief and rotation assignments.

139. As for “step-ups”, what are they really? Step-ups have no independent collective

agreement status as such. They are clearly a form of relief assignment which in my many

years of experience with the OPG-Society collective agreement has long used to fill

temporary staffing gaps in ongoing (permanent) positions.

140. All bargaining unit employees are either probationary, regular or temporary

employees (the latter a category that includes students – Article 3). An “employee” is not

45

an “assignment”, so although a “temporary employee” (i.e. “… an employee who is hired

for short-term work assignment which is not ongoing (i.e. normally 12 months or less and

not extending beyond 24 months) …” – Article 3.3.1) is an employee who is by

collective agreement definition a temporary hire to perform temporary work in

accordance with Article 34, this has nothing to do with temporary assignments of a

“regular” employee (or technically, but as a practical matter unlikely, a probationary

employee). Articles 5 and 65 apply to temporary assignments to regular (or

probationary) employees. Articles 3 and 34 do not.

141.

In denying that the collective agreement limits it to relief, rotation, and regular

position options to fill vacancies, or that the use of NBAs constitutes a violation of

Article 65 (paragraph 58, above), OPG points to Article 66.4 “Temporary Assignment in

a Higher-Rated Job”. As at the heading of Article 66 suggests (“Salary Treatment for

Promotions, Temporary Assignments, Lateral Transfers and Demotions”), this provision

speaks to the pay treatment of a bargaining unit employee temporarily assigned to a

higher-rated job – which could be a step-up relief assignment or a rotation assignment,

and is not at all inconsistent with the analysis above. It does not create or suggest a

“temporary” employee or work classification, either separate from Articles 3 and 34 or at

all.

142. I am satisfied that however they may be colloquially referred to, bargaining unit

employees have either regular positions or temporary assignments away from their

regular positions. By collective agreement definition, “relief” and “rotation” fully

occupy the temporary assignment field. They are the only forms of temporary collective

agreement assignment (albeit up to 2 years or even longer on agreement in the case of

rotations). There may be forms of “relief” or “rotations” to which another workplace

label is applied, but however they are labelled for OPG administrative purposes, for

collective agreement purposes temporary assignments are one or the other. Like

Shakespeare’s metaphorical rose, the label does not determine or change the collective

agreement nature of an assignment. Calling an assignment a step-up or a NBA isn’t

determinative of its collective agreement status. It is the nature of an assignment, not the

label, that determines its collective agreement character.

143. The collective agreement as written does not permit OPG to use rotations to fill

staffing gaps in ongoing positions. The collective agreement limits OPG to relief

assignments for that purpose, however they may be colloquially or administratively

labelled. As such, they are subject to the advance planning notice requirements of Article

65.3 and the limits specified in Articles 65.2 and 65.4 read together.

(iii) Application to the Society’s Complaint

46

(a) Summary Dispositions

144. Several issues can be disposed of summarily.

145. First, OPG noted but did not seriously pursue any objection to the post-grievance

evidence presented (which includes evidence of rotations that began before the date of

the grievance but either ended or are scheduled to end after that date). OPG also

responded to that evidence in its Hearing Brief and oral submissions. In any event, it is

well established that “subsequent-event” (or post-grievance) evidence is admissible in a

grievance arbitration proceeding if it helps inform the determination required (per

L’Heureux-Dubé J. writing for the unanimous Supreme Court of Canada in Cie minière

Québec Cartier v. Quebec (Grievances arbitrator), 1995 CanLII 113 (SCC), [1995] 2

SCR 1095 at para. 13). I am satisfied that the post-grievance evidence presented serves

to inform the determination of the grievance herein by providing a more complete picture

of the dispute for purposes of a better going forward determination for the parties.

146. Second, I note that OPG has not hinted much less specifically objected to the

Society pursuing a complaint that Article 65 operates to prohibit OPG from using

rotations to fill staffing gaps in ongoing Real Time Operations Team positions

(specifically the MP-4 Coordinator position gaps created by incumbents being stepped-up

to fill MP-5 Specialist position staffing gaps created by some combination of step-ups in

and rotations out of the Team). Not only has OPG not objected that this constitutes an

impermissible expansion of the grievance, it responded to the complaint and joined issue

with the Society in its Hearing Brief and oral submissions. In any event, a proper

consideration of the meaning and application of Article 65 naturally brings this

component of the Society’s complaint into play. In my view, it would be overly technical

and a disservice to the parties to put artificial interpretation boundaries on this aspect of

Article 65, and I consider it properly before me.

147. Third, there is no merit to OPG’s objection that the Society’s complaint about the

use of step-ups is outside of the scope of the grievance as filed. The grievance does in

fact include a complaint about OPG’s use of step-ups in the italicized “note”. It is also

well established that grievance arbitrators should take a non-technical approach to the

grievance brought before them so that the real dispute between the parties is fully

determined. Further, although the Society’s Hearing Brief focuses entirely on rotations,

OPG’s Hearing Brief makes no fewer than 15 references (including footnotes) to step-ups

and D’Cunha testified about them, so it was perfectly reasonable for the Society to join

issue with OPG with respect to the use of step-ups in cross-examination and oral

submissions. Finally, OPG’s admitted long-standing use of step-ups is necessary to the

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proper consideration of the meaning and application of the provisions of Article 65 read

as a whole. OPG’s objection to the Society making an issue of the use of step-ups is

dismissed.

148. Fourth, the Society claims that the result of the April 3-September 23, 2019 email

exchange between Rosati and Mastorakos was an agreement to convert one of the regular

Real Time Operations Team MP-4 positions to a MP-5 position (paragraphs 28 and 38

above). With respect, I do not read the email exchange as constituting such an

agreement. The Society’s concurrence to OPG’s proposal to use stepped-down MP-5s to

cover MP-4 gaps in the schedule does not amount to an agreement to convert a MP-4

position to a MP-5.

149. The determination of staffing levels and complements is a prima facie

management right. There is no evidence, and I was not referred to any collective

agreement provision or other source for Mastorakos’ April 3, 2019 email assertion that a

Real Time Operations Team “full shift complement of MP-4’s requires 5.2 FTE’s” or

requires the Society’s agreement to a change in complement, or that otherwise that

restricts OPG’s management right in that respect. Even if the email exchange could be

construed as a request for the Society’s agreement to Real Time Operations Team

scheduling, that does not mean that OPG had to ask, or that the Society’s agreement was

required. Nor does it mean that OPG cannot make complement or scheduling

adjustments as its sees fit – subject of course to applicable collective agreement

provisions, including Article 65.

(b) Disposition of Specific Issues Raised By the Parties

150. The specific issues raised by the parties in this case are identified by the

summaries of their submission in paragraphs 41 and 60, above.

151. The only collective agreement precondition for relief or rotation assignments

within the bargaining unit is that OPG must give the Society Article 65.3 notice in

accordance with the 2007 Bloch Award of such assignments “of greater than ten (10)

working days duration”. I agree with OPG that it is entitled to determine the level of

relief or rotation assignment.

152. I also agree with OPG that there is no collective agreement limitation on the

number of rotation assignments an employee may accept – so long as all applicable

collective agreement provisions are complied with.

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153. I agree with OPG that an employee who accepts a rotation assignment has an

Article 65 right to return to their base or “original” position, if it is available, or to a

comparable position if it is not (opening paragraph of Article 65.5 and Article 65.5.5) – if

the rotation is within the Society bargaining unit. However, rotations outside the

bargaining unit are governed by Article 5 and an employee who accepts an assignment

outside the bargaining unit, whether a rotation or otherwise, does not have a guaranteed

original or comparable position right of return. This does not mean that a staffing gap

left as a result of a bargaining unit employee accepting a rotation assignment outside the

bargaining unit necessarily constitutes a collective agreement “vacancy” that must be

posted and filled in accordance with Article 65.6. OPG may treat the gap as temporary

and fill it with a relief assignment in accordance with Article 65.4, in which case the

employee who rotated out may be permitted to return to it in OPG’s reasonably exercised

discretion. Or OPG may treat it as a vacancy which must be filled in accordance with

Article 65.6. However, the original position of an employee who has rotated out of the

bargaining unit cannot be filled “continuously” with relief assignments (Article 65.4.4). I

will come to what this means below.

154. As per the above, neither a rotation nor a relief assignment creates a collective

agreement “vacancy” in the position the employee who takes the assignment leaves

behind. I agree with OPG that “Article 65 does not require a “vacancy” created by either

a rotation in or a rotation out to be posted” – because no vacancy is created until it is

clear that the employee who left a regular position to take e temporary assignment will

not be returning to it. Vacancies must be posted (Article 65.6), but a rotation out does not

by itself create a “vacancy” within the meaning of the collective agreement. It creates a

staffing gap that can be filled with a relief assignment, which the collective agreement

does not require be posted, but Article 65.4.3 requirements and limitations must be

respected. A “rotation in” (to a non-ongoing position) must be posted if the assignment is

expected to last 6 months or longer (Article 65.5.2). The Article 65.3 notice to the

Society requirement applies in every case (of a 10 days or longer assignment).

155. OPG’s Hearing Brief describes two forms of “NBA”: a step-up to a higher level

assignment to a different role within the employee’s work group; and an assignment of an

employee out of their work group for more than 10 days but less than 6 months. OPG

does not suggest that a step-up is equivalent to a rotation assignment, and on the evidence

step-ups have not been treated as rotations, which is a good thing because they are not.

156. As indicated above, I agree with the Society that every “assignment” must fall

into a collective agreement category. “Step-up” and “NBA” are not categories of

assignments recognized in the collective agreement. All assignments away from an

“original” or regular bargaining unit position are NBAs. The ongoing position gap filling

49

nature of a step-up places it into the relief assignment category (as defined in Articles

65.2, 65.4.1 and 65.4.3 read together). An assignment designated as a “NBA” to a non-

going position is in the nature of a true rotation assignment. All “NBAs”, including step-

ups, are subject to Article 65.3 notice requirements, and the requirements and limitations

in Article 65.

157. As relief assignments, step-ups are subject to Articles 65.2, 65.3 and 65.4. That

is, step-ups are limited to the more specific (than Article 65.2) Article 65.4.3 90-day

duration limitation, subject to extension for a period of up to one year if the Society

agrees – but for no longer. Step-ups of greater than 10 working days are subject to the

Article 65.3 notice requirement in accordance with the 2007 Bloch Award.

158. I agree with OPG that the NBA form is an administrative tool sanctioned by the

2007 Bloch Award. I agree that the collective agreement does not require that a NBA

relief assignment be posted. The collective agreement does not require a NBA rotation

assignment within the bargaining unit that is not expected to last 6 months or longer to be

posted.

159. Having regard to the evidence of the manner in which the collective agreement

has been applied by the parties, I agree that OPG is permitted to use step-ups to higher

MP levels within a work group for the purposes described in the evidence – but not as or

to the extent described in the evidence. As a form of relief assignment, step-ups must

comply with the requirements of Articles 65.3 and 65.4. D’Cunha’s evidence is that

contrary to OPG’s assertion the Real Time Operations Team schedules do not identify

step-ups. I agree with the Society that the fact that close examination by the Society

Delegate who happens to be on the Team may reveal step-ups does not relieve of its

Article 65.3 advance notice obligations.

160. I find OPG’s claim that the Society has not previously taken issue with OPG’s

more than 20-year use of NBAs as assignments to a different role within the employee’s

work group, usually as a step-up, or as assignments outside of the employee’s work group

for more than 10 working days and less than 6 months puzzling, if not troubling. It was

Society’s complaints about OPG ignoring its Article 65.3 obligations led to the 2007,

2008 and 2013 Bloch Awards. To repeat, Article 65.3 applies, and applied at all material

times, to step-ups “of greater that ten (10) working days duration”.

161. On the evidence, I find that OPG did not give the Society notice of most the step-

ups identified in this proceeding, either in the form approved by Arbitrator Bloch or at

all. The fact that the Society may be able to discover step-ups on its own doesn’t absolve

50

OPG of its Article 65.3 obligations or mitigate its liability for failing to comply with

those obligations.

162. On the facts presented, OPG has not been giving the Society Article 65.3 advance

planning notice of many Article 65 assignments, not just step-ups. As per the above,

Article 65.3 requires 2007 Bloch Award approved notice to the Society of every longer

than 10 working days relief and rotation work assignment (whether referred to as such, or

as a NBAs or step-ups, or whatever) within the bargaining unit. Article 5.1.1 requires

prior notice to the Society of every bargaining unit employee temporary assignment

outside the bargaining unit exceeding three months’ duration. Perhaps OPG has been

providing such notice. I have no evidence or suggestion either way.

163. More specifically, Wong’s moves to a “RT Manager” position and to Artura were

both temporary assignments outside the bargaining unit and as such were wholly

governed by Article 5 (which I repeat contains no reference to rotations). The same is

true for Beard’s assignment as “Settlements Manager” and Sauer’s assignment to

“Market Affairs”. Because these assignments were for longer than 3 months, OPG was

obliged by Article 5.1.1 to give the Society prior notice of them. Although the evidence

includes an offer letter to Wong for his move to the Sr. Manager Real Time Market Ops

position and an offer letter to Beard for her move to the Senior Manager Settlements

position, on their face neither of these was copied to the Society. More importantly,

Article 5.1.1 requires prior notice, not coincident or subsequent notice, and there is no

evidence that any prior notice was given. There is similarly no evidence of prior notice

to the Society of Wong’s move to Artura. If OPG failed to give the Society Article 5.1.1

notice of these movements it violated the collective agreement. However, the parties

paid no attention to Article 5 in this proceeding, and I do not consider it appropriate to

make any finding of OPG guilt in that respect.

164. OPG asserts and the Society does not deny that the Market Renewal Project is a

temporary work program. On the evidence, Beard’s move to the Market Renewal Project

bargaining unit position fits squarely within the collective agreement definition of

rotation assignment. However, the combination of OPG’s Excel spreadsheet and

D’Dunha’s testimony establishes that this temporary short-term assignment began in or

about mid-September 2020 and is scheduled to end at the end of April 2023 – a period of

some 31 months. Although the evidence is that the “rotations in” to the Real Time

Operations Team were used to cover the staffing gaps left by Wong’s and Beard’s

assignments out, there is no evidence of any Article 65.3 notice to the Society of Beard’s

assignment to the Market Renewal Project (a position within the bargaining unit). Nor is

there any evidence that OPG has obtained the Society’s Article 65.5.2 agreement to

dispense with a posting or of any Society agreement to the extension of the assignment

51

beyond 2 years. OPG therefore violated Article 65.3 and is potentially non-compliant

with Article 65.5.2 (potentially because the provision does not specify when the Society’s

agreement must be obtained).

165. It is clear that OPG has been using rotation assignments to fill staffing gaps in

ongoing MP-4 positions in the Real Time Operations Team. This is a violation of Article

65. The reason for a staffing gap in an ongoing position is irrelevant. Even if a staffing

gap in an ongoing position is created by a legitimate rotation out, it cannot be filled by a

rotation in. Article 65 requires that temporary staffing gaps in ongoing positions only be

filled with relief assignments in accordance with Article 65.4. That is what the parties

have agreed to.

166. Toor’s December 2029-February 2020 NBA to the Real Time Operations Team,

Akanni’s NBA assignment to the Real Time Operations Team in April 2021, that OPG

turned into a rotation in or about July 2021, and Fiorente’s April to June 2021 NBA to the

Real Time Operations Team, were primarily for the purpose of allowing them (and OPG)

to assess whether shift work was for them. However, there was also a substantial staffing

gap backfill element to these assignments. As such they were in the nature of relief

assignments, all of which were for less than 90 days. The Society does not dispute

OPG’s assertion that it was given notice of Akanni’s and Fiorente’s relief NBAs.

However, there is no evidence that OPG gave notice to the Society of Toor’s relief NBA.

OPG therefore violated Article 65.3 with respect to Toor’s relief NBA.

167. I find that Akanni’s assignment subsequent to his relief NBA which OPG claims

was a “rotation” into the Real Time Operations Team was a temporary assignment to

cover a MP-4 staffing gap in the Real Time Operations Team. If it was a rotation as OPG

claims it violated Article 65 because rotation assignments to ongoing positions are

prohibited. If it was a relief assignment OPG violated Article 65.4.3. Notwithstanding

that it apparently ended in less than 91 days when Akanni became permanent, it was

intended to be a 2-year assignment. As such, OPG was required to obtain the Society’s

consent to extend the assignment for up to one year and was in any event prohibited from

extending it beyond one year. Although there is no evidence of Article 65.3 notice of this

assignment to the Society, the evidence is that all rotations into the Real Time Operations

Team were posted so that the Society had actual advance notice in that respect.

168. As for Fiorente’s assignment to the Real Time Operations Team subsequent to her

relief NBA, I find that in her case the Society had actual notice of the 2-year purported

“rotation” by way of a job posting. Notwithstanding that there is no evidence that the

Society made any specific objection to it being posted as a rotation, this assignment is

covered by the grievance herein. I find that this assignment was a temporary assignment

52

to cover an ongoing MP-4 position staffing gap in the Real Time Operations Team. OPG

violated Article 65 by using the rotation to cover a staffing gap in an ongoing position. If

it was characterized as a relief assignment, then OPG violated Article 65.4.3 by failing to

obtain the Society’s agreement to have it run for more than 90 days, and OPG will be in

further violation of Article 65.4.3 if the assignment is extended beyond one year.

169. I find that Sunassy’s July to November 2021 NBA was a temporary assignment to

cover an ongoing MP-4 position staffing gap in the Real Time Operations Team. If it

was a rotation as OPG claims it violated Article 65 because rotation assignments to

ongoing positions are prohibited. If it was a relief assignment, OPG violated Article

65.4.3 by filing to secure the Society agreement to extend the assignment beyond 90

days. Although there is no evidence that OPG provided the Society with Bloch approved

Article 65.3 notice of Sunassy’s more than 10 working day temporary assignment, if it

was a rotation and was posted the Society received actual advance notice. If it was a

relief assignment no Article 65.3 notice was provided and that is a violation of the

collective agreement.

170. Having regard to the evidence summarized in paragraph 21, above, I find that

Liu’s, Jonassen’s, Licenji’s, Hamdan’s and Majdpour’s assignments to the Real Time

Operations Team were temporary assignments to fill staffing gaps in ongoing MP-4

positions. OPG says these were rotations. OPG therefore violated Article 65 because

rotation assignments to ongoing positions are prohibited¹². I find that in all these cases

OPG violated also Article 65.3 by not giving the Society notice of the assignments.

171. On the evidence, some of the identified 11 step-up assignments lasted longer than

90 days without the Society’s agreement (the limitation in Article 65.4.3) as follows per

T4 in the Society’s Supplementary Book of Documents and OPG’s “Step Up

Assignments” document:

 Medina Dougall – MP-5 to MP-6 – July 1 to September 30, 2019 – 91 days

 Ing – MP-5 to MP-6 – October 1, 2019 to June 28, 2020 – 271 days

 Phillips – MP-4 to MP-5 – May 6 to October 16, 2019 – 163 days*

 White – MP-4 to MP-5 – November 6, 2019 to June 20, 2020 – 227 days

 Karchev – MP-4 to MP-5 – September 1, 2020 to August 29, 2021 – 362 days

 Medina Dougall – MP-5 to MP-6 – September 1 to December 29, 2020 – 119

days

¹²I note that if they were relief assignments, they would have violated Articles 65.3 and 65.4.3 because

OPG did not give the Society Bloch approved notice of the assignments and failed to obtain the Society’s

agreement to extend them beyond 90 days, and in the case of Jonassen, Licenji and Hamdan in any event

also violated the Article 65.4.3 1-year maximum length limit.

53

 Medina Dougall – MP-5 to MP-6 – November 1, 2019 to February 25, 2020 – 116

days¹³

 McKee – MP-5 to MP-6 – March 2, 2020 to February 28, 2021 – 363 days

 Doan – MP-5 to MP-6 – January 1to April 28, 2021 – 117 days

 Liu – MP-4 to MP-5 – January 2, 2021 ongoing as of December 2021 – 250+

days

 Phillips – MP-5 to MP-6 – May 5 to August 27, 2021 – 114 days

*OPG says this Phillips step-up was non-continuous, and that Phillips was “assigned

to the MP-5 Specialist desk following training in the role for May (only). There is no

further explanation. I interpret this to mean that Phillips was “training” in May 2019.

Even if this training can be considered a non-step-up, the period from June 1 to

October 16, 2019 would still be more than 90 days.

172. I am satisfied that OPG did not give the Society the 2007 Bloch Award notice

required by Article 65.3 for any of the step-ups. There is no evidence that any step-ups

actually violated the full-stop one-year duration limits on relief assignments. However,

there is equally no evidence that OPG obtained the Society agreement required by Article

65.4.3 for the extension of the 11 identified step-ups that lasted longer than 90 days. I

consider it reasonable to infer that no such notice was give and that OPG therefore

violated the collective agreement in that respect.

173. I consider the Society’s concern about OPG’s use of back-to-back or perpetual

temporary assignments to fill ongoing positions to be legitimate.

174. The overall tenor of Article 65 is that relief and rotation assignments will be

temporary or short-term. But what does this mean? There are no Article 65 “definitions”

as such for the synonymous terms “temporary” and “short-term”. However, when Article

65 is read as a whole, it is apparent that a “relief” assignment is a temporary or short-term

assignment to fill a staffing gap in an ongoing (i.e. permanent) position for Article 65.4.1

purposes “normally” lasting for up to 90 days but subject to extension for up to 1 year

with the Society’s agreement. The plain and ordinary meaning of this is that after 90

days or 1-year at the most the assignment can no longer be considered temporary or

short-term. Although Article 65.4.4 prohibition against the use of continuous¹⁴relief

assignments to avoid posting an ongoing position (in accordance with Article 65.6)

¹³I note that during the 18-month period July 1, 2019 to December 29, 2020 Medina Dougall spent 326

days (some 11 months) stepped up from her MP-5 to an MP-6 Real Time Operations Team position.

¹⁴The plain and ordinary meaning of “continuous” or “continuously” is: “uninterrupted in time, sequence,

substance, or extent”. Synonyms include “ceaseless” and “ceaselessly” (meaning without stop or pause;

constant), and “endless” and “endlessly” (being or seeming to be without an end or limit).

54

makes it clear that relief assignments cannot be used to endlessly fill an ongoing position,

the phrasing suggests that more than one up to 90-day relief assignment can be used. I

find that the 1-year with Society consent limit applies to cumulative relief assignments to

the same ongoing position and provides a 1-year hard stop. That is, a whole reading of

Article 65.4 suggests that OPG can use a series of up to 90 day relief assignments to fill

the same ongoing position so long as the cumulative duration of the relief does not

exceed one year. After one year of being filled with “relief” an ongoing position must be

considered vacant and either left vacant or filled in accordance with Article 65.6.

175. Similarly, “rotations” are assignments “normally for more than 3 months and not

exceeding 2 years unless the Society agrees to a longer duration. Article 65.5.2 provides

a 2-year full stop unless the Society agrees otherwise. So for rotations, temporary or

short-term means up to 2 years or for as long as the Society agrees. I agree with the

Society that absent its agreement a rotation assignment cannot continue beyond 2 years,

whether filled with the same or different employees. Although OPG is correct that there

is no collective agreement limit on the number of rotation assignments an employee may

accept, there is a limit on the length of the same rotation assignment – meaning an

assignment to perform the same non-ongoing work. Contrary to OPG’s submission, the

limitation applies to the wok not the individual assignment(s) to perform the work.

Otherwise OPG could have defined purportedly non-ongoing “work” performed

endlessly by means of rotation assignments, which is the opposite of what is

contemplated by Article 65.

176. When an employee is assigned to work, they occupy a position for the purpose of

performing that work. A rotation assignment is an assignment to perform non-ongoing

work not associated with a regular or permanent position. The collective agreement

limits the duration of such assignments and the work that is the subject of the

assignments to 2 years unless the Society agrees it can continue for a longer period. The

duration cannot be extended beyond 2 years without the Society’s agreement by

artificially separating what is fundamentally the same assignment into multiple

assignments, whether or not separated by brief periods of inactivity and whether to the

same or different employees. By collective agreement definition, the work and the

position become ongoing when the 2-year Article 65.5.2 limit or the agreed to extension

beyond 2 years expires. Once the collective agreement temporary or short term limit is

reached the position is by operation of the collective agreement considered permanent

and as in the case of relief it is vacant and must either be left vacant or filled in

accordance with Article 65.6.

177. However, and notwithstanding the violations of the collective agreement as

determined above, I am unable to conclude that the Real Time Operations Team staffing

55

gaps that OPG wrongly filled with rotation assignments or with variously named relief

assignments in a manner contrary to the collective agreement were or are “vacancies”

within the meaning or for purposes of Article 65.6 – at least not as of the terminal dates

in the evidence. A vacancy is not created until the employee in a position leaves it

without the intention of returning or abandons the collective agreement “right” of return.

On the evidence, none of the positions left by an employee who accepted a temporary

relief or rotation assignment (by definition away from their regular or permanent

position) were left vacant and subject to only being filled in accordance with Article 65.6.

They were and can be filled with relief assignments in accordance with and subject to the

limitations in Article 65.4.

178. Further, I have found that OPG violated Article 65 because rotation assignments

to ongoing positions. However, the Society has not alleged bad faith, and I am in any

event satisfied that OPG used the rotation assignments in the honest and not unreasonable

(given Article 65.5.1 (g) which was notionally operative until this Award) albeit mistaken

belief that it was permitted to do so. I am not satisfied that it is appropriate to Declare

that the ongoing positions improperly filled with rotation assignments became vacant and

subject to being filled in accordance with Article 65.6, either after OPG’s entitlement to

use relief to staff them expired or at all. On the contrary, I am satisfied that it is

appropriate and in the interests of labour relations between the parties to give OPG an

opportunity to bring itself into collective agreement compliance.

(d)

Result

179. In the result, the grievance is allowed in part as follows:

(a)

(b)

I DECLARE Article 65.5.1 (g) null, void, and of no collective agreement

effect.

I DECLARE THAT OPG has violated Article 65 of the collective

agreement by failing to comply with the requirements and limitations in

Article 65.4 as determined above.

(c)

(d)

I DECLARE THAT OPG has violated Article 65 of the collective

agreement by filling staffing gaps in ongoing positions in the Real Time

Operations Team with rotation assignments as determined above.

I ORDER OPG to cease and desist from filling staffing gaps in ongoing

positions with rotation assignments going forward from the date of this

Award.

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(e)

(f)

I ORDER OPG TO bring existing “relief” and “rotation” assignments

into compliance with Article 65 within 30 days, or such other time to

which the parties agree; and to immediately comply with Article 65 going

forward from the date of this Award as determined above. I can be

approached if 30 days is insufficient time and the parties cannot agree to

an extension.

I DECLARE THAT OPG has violated Article 65.3 of the collective

agreement in the case of temporary assignments within the bargaining unit

to the extent that it has not given the notice required in at least the form

approved in the 2007 Bloch Award for step-up for all relief (including

step-up) and rotation work assignments of greater than ten (10) working

days duration, however they may be colloquially referred to or labelled for

OPG administrative purposes.

(f)

I ORDER OPG TO comply with Article 65.3 going forward from the

date of this Award.

(g)

I DECLARE THAT OPG violated Article 65.4.3 of the collective

agreement by extending the 11 step-up relief assignments identified in

paragraph 171, above, beyond the stipulated 90 day duration limit without

obtaining the Society’s express agreement.

(h)

(i)

I ORDER OPG TO take immediate steps to put itself in compliance with

Article 65.4.3, and to comply with that provision going forward from the

date of this Award.

I am concerned that absent full knowledge of my determinations as herein,

the Society may not have had a full opportunity to consider a fulsome

request for relief. Accordingly, I ORDER THAT THE SOCIETY MAY

SEEK further or other relief within 30 days of the date of this Award.

The Society may apply for a brief extension of time for the purpose.

180. I remain seized until no later than October 31, 2022 for the purposes of

rectification if and as required, and to deal with any issue or dispute concerning remedy,

or concerning the administration or application of this Award.

181. I recognize that this Award is likely to cause some consternation, and likely some

workplace administration difficulties, particularly in the short term. But I did not write

57

the collective agreement, the parties did (albeit at times with the assistance of an interest

arbitrator), and as noted in paragraph 65, above, such things are not a legitimate

collective agreement interpretation consideration. The parties are stuck with the

collective agreement bargain they have made. If it does not work for either of them, it is

up to them, not a grievance arbitrator, to find a collective bargaining solution.

DATED AT TORONTO THIS 21st DAY OF FEBRUARY 2022.

______George T. Surdykowski______

George T. Surdykowski – Sole Arbitrator

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APPENDIX A

STATEMENT OF POLICY GRIEVANCE:

This policy grievance was triggered on Dec 23, 2020 when OPG notified the Society of United

Professionals (“Society) that it extended two of three MP-4 Associate Market Coordinator

rotations within the Day Ahead & Real Time Operations group beyond a two-year term, which is

a violation of Article 65.5.2 and all other relevant Articles of the Collective Agreement.

Rotations are supposed to last no longer than 2 years. Anything beyond that and the expectation is

the rotation becomes a permanent/regular position or the rotation stops. In this instance, it appears

OPG has ignored this provision of the Society collective agreement, and has, in fact, had three

MP-4 rotations on the go since at least February 2019. The Society had voiced its concern about

this disingenuous scheme to subvert the CA during several recent meetings with Commercial

Operations management.

The Society contends that during 2019, 2020 and 2021 there existed 3 rotations within Day

Ahead & Real Time Operations (“perpetual rotations”). These perpetual rotations were staffed

previously by Jeff Sauer, Roger Liu, John Jonassen, and Gagan Toor, and currently by Melisa

Licenji, Hassan Hamden and Jasmine Majdpour. The purpose of these rotations was (1) to plug a

permanent hole created in the MP-4 shift schedule after the MP-4 regular staff complement was

reduced from 6 to 5 during Q3 2019; (2) to provide coverage while other regular MP-4 (and MP-

5) shift staff trained for MP-5 (and MP-6) shift roles; (3) to provide coverage while other regular

MP-5 and MP-6 shift staff were assigned to short term, off-shift project work/tool development;

and (4) to provide coverage for the multi-year absences of Amy Beard (management rotation and

secondment to Lynn Wizniak’s group), Ray Wong (management rotation and secondment to

Atura) and Jeff Sauer (2-yr rotation into Lynn’s group plus delayed start resulting in more than 2

years of coverage).

Note: Further to (2) and (3) above – OPG employed step up arrangements (that are

meant to be used only as temporary stopgap measures) and Non-Base Assignments to fill

holes in the shift schedule created when regular MP-4’s, MP-5’s and MP-6’s were

stepped-up to train or to do project work. The Society does not recognize the “Non-Base

Assignment” job classification – that term does not exist in the CA. The expectation

going forward is that training and project needs be filled on a relief, rotation,

regular/permanent or temporary basis, with formal offer letters being issued for the last

three categories.

The Society is uncertain whether the three perpetual rotations were staffed continuously during

2019 and 2020. There may have been be gaps as people left and new individuals were hired as

replacements.

59

APPENDIX B

3

Employee Classifications

Probationary Employees

3.1

A probationary employee is an employee, who is hired on a trial basis with the prospect

of being reclassified as a regular employee, if the employee's performance satisfactorily

meets the job requirements. The probation period is normally a minimum of three months

and a maximum of six (6) months. After six (6) months, the employee will either be made

regular, transferred to another probationary position or terminated unless there is an

expectation that a longer probationary period will result in improvement in a specific area

which has been identified to the employee (e.g. completion of a training course or a

specific work assignment, interrupted probationary period as a result of parental leave,

etc.) The employee's benefits and working conditions are the same as regular employees

with exceptions identified in the provisions where different treatment has been agreed to.

3.2

Regular Employees

A regular employee is an employee who has either served the required probationary term

or has previously been employed in one of the other categories and has satisfactorily met

the job requirements. The employee occupies a position that is considered part of the

ongoing organization of OPG.

3.2.1 Reduced Hours of Work Regular Employees

A reduced hours of work regular employee is an employee who has regular status but

works less than the base hours for a full-time position. The employee's benefits and

working conditions are pro-rated and based on the entitlements of the regular employees.

The pro-rating is described in Article 71 (Reduced Hours of Work).

3.3

Temporary Employees

3.3.1 A temporary employee is an employee who is hired for short-term work

assignment which is not ongoing (i.e. normally 12 months or less and not

extending beyond 24 months). The employee's benefits and working conditions

are as per Article 34 (Temporary Employees).

3.3.2 Reduced Hours of Work Temporary Employees

A reduced hours of work temporary employee is an employee who has temporary

status but works less than the base hours for a full-time position. The employee's

benefits and working conditions are pro-rated as per Article 34 (Temporary

Employees).

3.3.3 Student Employees

A student employee is an employee who is hired for short-term work which is not

ongoing. They are normally in the process of completing their post-graduate

studies and is expected to return to their studies after an agreed employment

60

period. The employee's benefits and working conditions are as per Article 34

(Temporary Employees).

…

5

Temporary Assignments

There may be instances when employees are temporarily removed from their normal duties to

perform work outside of the Society's bargaining unit. Likewise, employees from outside of the

bargaining unit may be assigned temporarily to work within the Society's bargaining unit.

In such instances, the parties agree that:

5.1

Employees Temporarily Excluded from Society Jurisdiction

5.1.1 The Society shall be given prior notice of any temporary assignment exceeding

three months’ duration that OPG considers outside the bargaining unit, along

with a rationale for the proposed exclusion.

5.1.2 The Society shall continue to represent employees who have been temporarily

removed from their regular positions to perform work outside the bargaining unit

for the first three months of the temporary assignment. Dues shall be deducted

and remitted to the Society for the entire period of the temporary assignment of a

Society member while performing work outside the bargaining unit.

5.1.3 Except where otherwise specified in this Agreement, Society-represented

employees who are temporarily assigned to positions outside the bargaining unit

shall have access to all benefits, plans or entitlements under Part IX (Health

Benefits), Part X (Pension and Insurance), Part XI (Relocation Assistance), and

Articles 64 (Employment Continuity), and 65 (Vacancies) of the Collective

Agreement for the full duration of the assignment.

5.2

Employees Temporarily Included in Society Jurisdiction

5.2.1 OPG personnel from outside the Society’s bargaining unit who are temporarily

assigned work within Society jurisdiction shall be represented by The Society for

that portion of the assignment extending beyond three months, and dues shall be

deducted for the period beyond three months.

5.2.2 During the period of Society representation, temporarily included employees

shall be subject to the provisions of the Collective Agreement, but the following

shall not apply:

 Article 20 (Performance Appraisals and Reduced Pay Standing Complaints),

21 (Performance Appraisal Feedback and Advanced Warning of Reduced

Pay Standing) excluding 21.4, 32 (Re-earnable Incentive Plan), 33

(Progression-In-Place Plans)

 Part VIII (Absence from Work)

 Part IX (Health Benefits)

 Part X (Pension and Insurance)

61

 Part XI (Relocation Assistance), except for Article 55 (Compensation when

Assigned to Temporary Work Headquarters)

 Article 63 (Compensation for Authorization as a Nuclear Shift Supervisor)

 Part XIII (Working Conditions)

 Other provisions or Agreements to the extent they concern the above

…

10.3

Bargaining Unit Information

Management agrees to provide the Society with the following, on a regular basis:

a)

A copy of the appointment letter, for employees selected to Society represented

vacancies, will be copied to the appropriate Unit Director, within a reasonable

period of time

b)

c)

Detailed records of dues deducted

Detailed information on the membership, including:

- Occupation Code, Job Title, Salary Schedule, Salary Grade, Organization (e.g.

Business Unit/Division/Department), Mailing Location, Phone Number

Upon written request provide to a Unit Director applicant information to

specified Society represented vacancies.

d)

…

65

Vacancies (Relief, Rotations and Selections)

65.1 Intent

To provide open, fair access to career opportunities and enable OPG to optimize staffing

requirements over time.

65.2

Definitions

“Relief/Rotations” assignments are short assignments where an individual is assigned

duties outside their normal job duties.

“Relief” assignments will mean short-term assignments (normally up to 3 months) where

an individual is appointed to act temporarily in an ongoing position or which is expected

to become an ongoing position. In some cases, the individual may not be required to

perform all of the duties and responsibilities of the position.

“Rotations” will mean assignments normally greater than 3 months but not exceeding 2

years in duration in positions which are not expected to be ongoing.

65.3

Advance Planning

Prior to filling the work assignment of greater than ten (10) working days duration,

Management will meet with the local Society representative to discuss the nature of the

requirement (e.g., relief, rotation) its expected duration, the selection process and whether

there is an expectation that the work assignment will result in an ongoing position.

62

65.4

Relief

65.4.1 Relief is used to cover (a) short-term absences for vacation, sickness, relief

absences, etc., (b) short-term bridging periods for selection or rotation, and (c)

short-term emergency situations.

65.4.2 The process for selecting the employee to fill the relief assignment should be

easy and quick and provide a fair opportunity to employees in the work unit to

perform relief.

65.4.3 If there is mutual agreement between the Society Unit Director and Management

prior to the beginning of the relief assignment, the relief assignment and the

incumbent(s) can run for a period of up to one year. In the absence of mutual

agreement, the relief assignment is limited to 90 days.

65.4.4 Relief assignments will not be used continuously to avoid advertising either a

rotation or an ongoing position.

65.4.5 Pay treatment while on relief will be in accordance with Article 66.

65.5

Rotations Within the Bargaining Unit

(This Article does not apply to rotations outside the Society jurisdiction. Article 5 applies

to rotations outside the Society jurisdiction.)

Rotations are used to accomplish work for situations that occur between short-term relief

and ongoing positions. At the completion of the rotation, the employee will return to their

original position or a comparable position normally within the sending unit, except in the

circumstances where the employee is surplus (see Article 64).

65.5.1 Principles

Job rotations serve many purposes such as:

a)

b)

c)

to provide development opportunities to employees consistent with their

career objectives;

to allow Management to meet temporary work programs and work load

requirements;

to manage work performance or to test skills and capabilities where it is

believed that an employee's skills and capabilities may be better utilized

in another position;

d)

e)

to broaden the experience of employees so that they may better perform

their regular jobs;

to provide employees with the opportunity to develop new skills for

career advancement or to enhance career options in the case of

63

anticipated redeployment or technological change which could result in

skill redundancy or obsolescence;

f)

to meet OPG’s employment equity objectives;

g)

to provide Management with flexibility in resourcing regular positions as

a result of employees being provided rotational opportunities and

temporary relief assignments.

65.5.2 Rotations which are expected to last six (6) months or longer in duration will be

posted unless there is agreement with the Society. The scope of the posting will

be determined by the receiving unit and may be within the Department,

Division/Business Unit or OPG-wide. Unless there is mutual agreement, the

rotation will not continue beyond two years except where the position is formally

identified as an ongoing training position.

A job rotation posting should include basic information such as the position name

and location, salary level, a description of required duties, starting date and

proposed duration of the rotation.

65.5.3 The optimal selection process is one in which the employee's interest in the job

rotation opportunity, the sending unit's ability to release the employee and the

receiving unit's interest in the employee coincide. Rotations will be voluntary.

The selection process should include the use of formal selection criteria and

interviews will be the responsibility of the receiving unit.

65.5.4 Employees selected for rotation will be provided with a letter in advance of the

rotation stating the nature, terms and conditions of the assignment, including

rotation duration and details of the performance appraisal process. These terms

and conditions should be mutually acceptable.

65.5.5 An employee, other than those who are surplus, who accepts a job rotation will

be given a guarantee by the sending unit that they can return to their original

position, if available, or to a comparable position normally with the sending unit.

65.5.6 Terms and working conditions while on a job rotation will comply with all

applicable Articles in the Collective Agreement concerning pay treatment,

overtime, performance appraisal process, moving expenses, travel expenses and

related OPG policies.

…

65.6

Selections for Assignments Other Than Relief or Rotations

65.6.1 All vacancies for assignments which do not fall into the category of relief or

rotations shall be advertised OPG-wide unless there is agreement with the

Society Local Vice-President or the following conditions apply:

a)

during implementation of Article 64;

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b)

laterals or demotions in the case of sickness; employees with disabilities

or special needs; employees returning from rotations, LTD, leaves of

absence, foreign assignments, secondments/assignments outside OPG;

c)

d)

e)

performance management that takes place following consultation with

the Society;

ongoing exceptions in specified organizational units where there has

been joint agreement of the JSMC;

“Progression” within a Progression-In-Place Plan or a proposal which

has the joint agreement of the JSMC in accordance with Subsection

33.3.1. Vacancies for positions in a Progression-In-Place Plan will be

advertised in a manner which informs employees that the position is

included in a Progression-In-Place Plan and that where the best candidate

does not satisfy the qualifications or experience required for the end

position the employee may be offered the position at a lower rate and be

progressed in place.

Employees in categories (a) to (e) in subsection 65.6.3 will be considered

at all levels of the PIP prior to those employees in categories (f) to (h)

and subject to unit viability. Unit viability which would alter this

consideration will be discussed in advance of advertising the PIP.

Exceptions to provide for the advertising of the position at a lower rate

than the end position will be permitted by joint agreement between the

Society Unit Director and the Business Unit Leader based upon a

balanced consideration of:

 future work planning needs

 providing developmental opportunities for lower-rated staff outside

of the Progression-In-Place Plan

 current work requirements

 unit viability and the need to have sufficient number of staff in the

end positions.

In such cases, the vacancy notice will state that the position is part of a

PIP Plan and surplus employees will be considered for placement at a

lateral level.

f)

a regular position currently held by an employee where a job review has

resulted in a change in Salary Band;

g)

to fill vacancies with the same occupation code within six (6) months of

the ongoing posting, in which case Management may select from the

previous list of candidates, after checking that surplus employees have

65

not become available for consideration since the vacancy was last

advertised;

h)

to meet legislative requirements.

65.6.2 All applications which represent a promotion must be processed.

When an application to an advertised vacancy represents a lateral or demotion to

a non-surplus employee, the following will apply:

a)

Applications from employees with less than three years’ service in their

current position will be processed and considered where the supervisor

determines that the move on balance would be in the best interest of

OPG and the employee.

b)

c)

Applications from employees with over three years' service in their

current position will normally be processed and considered unless the

move seriously jeopardizes the viability of the work unit.

Applications to an advertised vacancy which represent a demotion with

an increase in base hours of work to a non-surplus employee will be

processed where the employee’s Director determines that the move on

balance would be in the best interest of OPG and the employee.

d)

Applications to an advertised vacancy which represent a demotion with a

decrease in base hours of work will not be processed.⁹

____________________

9 Per Surdykowski’s Award dated September 1, 2016 for OPGI-2015-2920/#2113 and OPGI-

2015-2919/#2114

65.6.3 Selection Priority for Vacancies

65.6.3.1 Selection Priority for Vacancies

If there is more than one applicant for a vacancy within the Society's jurisdiction,

the applicants will be considered in the priority set out below:

a)

Surplus Society-represented employees who have elected the priority

consideration option in Subsection 64.17 (Declared Surplus - Significant

Inequity Rights).

b)

Surplus Society-represented applicants for whom the vacancy represents

a lateral or demotion including surplus trainees applying for MP2 or

equivalent and who were mixed and matched with employees who are

not Management and Professional Trainees.

c)

Surplus employees who are Management and Professional Trainees who

were not mixed and matched with employees who are not Management

and Professional Trainees and who have greater seniority than Surplus

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Applicants who are not Management and Professional Trainees will have

priority consideration for MP2 and equivalent vacancies before the

applications from all other individuals other than those in (a) and (b)

above.

d)

e)

Surplus applicants from positions that are excluded from the Society (i.e.

Society Equivalent Management Group Jobs (formerly MF)) and for

whom the vacancy represents a lateral or demotion.

Society-represented employees and Society Equivalent Management

Group Jobs (formerly MF) applicants from a business unit that has

invoked Article 64 and a JRPT has not completed its mix and match for

whom the vacancy represents a lateral or demotion.

f)

Selection on a “best qualified” applicant basis from among regular

Society-represented applicants, and applicants with recall rights under

Article 64.30 or 64.41 (i).

g)

Selection on a “best qualified” applicant basis from among all other

regular applicants from OPG.

h)

i)

Selection on a “best qualified” applicant basis from among temporary

employee applicants with OPG.

External to OPG.

Assessment of the suitability of a surplus employee for a lateral or lower level

placement opportunity will include education, experience, personal contribution

factors and potential for training to perform the job requirements within a

reasonable period of time (e.g. up to six (6) months). A surplus employee who is

placed and who requires additional training to perform the job requirements with

assistance to obtain the necessary training and development to perform the new

job requirements. OPG will restructure the cost of retraining so it mitigates the

disincentive in the redeployment of surplus staff.

A determination that none of the applicants in category (a) is qualified or

qualifiable within a reasonable period of time is required before considering the

applicants from the next category. The same is true with respect to categories (b),

(c), (d), and (e).

See subsection 65.6.1 for priority consideration of applicants to Progression-In-

Place Plan vacancies.

OPG agrees to grant priority to Society-represented employees in the business

organization corresponding to the Society’s bargaining unit who are surplus and

to those who fall within subsection 65.6.3(e) who apply for positions excluded

from all union jurisdictions and for whom the vacancy represents a lateral or

demotion, after the consideration of surplus applicants in the business

organization corresponding to The Society’s bargaining unit who are excluded

from all unions for whom the vacancy represents a lateral or demotion and prior

to consideration of all other applicants

67

65.6.4 In determining who is the best qualified candidate for positions, in each category

of subsection 65.6.3, the primary basis for the selection of employees is their

assessed capability to perform the necessary work. The selection criteria would

normally include but not be limited to the following:

a)

requirements including skill, knowledge, education, experience,

transferable/generic skills such as analytical skills, communications

skills, project management skills, consulting skills, self-management

skills, accountability, responsibility, etc.;

b)

c)

the candidate's past track record and what they bring to the position;

the candidate's potential to develop competence for more senior

positions;

d)

e)

the need to meet legislative requirements;

the need to balance the overall requirements of the work unit.

65.6.5 Employee selection measures which are used as aids in selection decisions shall

be job related and be used in a manner that is fair and equitable to the individuals

being assessed. Individuals will be entitled to prior knowledge of the selection

criteria and be entitled to information with respect to their performance in the

selection process upon request.

65.6.6 Some flexibility should be exercised in accepting late applications to advertised

vacancies after the closing date in order to permit employees a fair opportunity to

continue employment yet still allowing the Business Unit to resource

expeditiously.

Where the closing date is FIRM, it must be stated clearly in the vacancy posting

that late applications will not be considered.

a)

b)

Surplus and non surplus employees are normally expected to have made

application to a vacancy by the closing date.

It is recognized that in some instances, there will be applications filed

after the official closing date. In these cases, unless the closing date is

FIRM, late applications must be filed with the advertising location NOT

later than the date that the “short list” of applicants is finalized for formal

consideration.

•

The term “Short List” refers to the first list of applicants who

Management plans to interview for a vacancy.

c)

Employees who have applied for vacancies and are later declared surplus

have until the “short list” date to notify the advertising location of the

change in their status.

65.6.7 Applicants to advertised vacancies are to be advised of the status of the vacancy

(and of their applications) within a reasonable period of time for each successive

step they qualify for.

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65.6.8 When outstanding vacancies remain unfilled for longer than six months,

employees in the work unit concerned should be advised of the reason for not

filling such vacancies.

65.6.9 All positions on Salary Schedules 01, 02, 03, 04, 05, 08, 09, 10, 11, 12, 13, 15,

22 which are excluded under the Recognition Clause and first-level ESR

vacancies including rotational opportunities expected to last longer than six

months will be posted electronically

65.6.10 Release of Employees Selected to a Vacancy

Intent:

(a)

OPG will strive to facilitate the expeditious release of employees who

are selected to a vacancy.

(b)

Normally, employees should be released within 90 days of the vacancy

selection. In the event that a release date greater than 90 days appears

likely, Management will discuss the reasons for the delay and a release

date with the Society.

66

Salary Treatment For Promotions, Temporary Assignments, Lateral Transfers and

Demotions

…

66.4

Temporary Assignment in a Higher-Rated Job

66.4.1 From the first working day performing in a higher-rated job an employee

shall receive:

a)

b)

a salary increase whereby, as a minimum, the employee is placed

on the step nearest to a 3% increase when assigned to work in a

position one or two bands higher than the employee's normal job;

a, salary increase whereby, as a minimum, the employee is

placed on the step nearest to a 5% increase when assigned to

work in a position more than two bands higher than the

employee's normal job.

66.4.2 To be eligible for the payments above:

a)

b)

the position must be filled to satisfy operating requirements; and

the employee must perform all or most of the normal job duties

of the position as expected during the course of the assignment.

Where a temporary assignment to a higher-rated position is discretionary and

optional for the employee, pay treatment is also discretionary. Discretionary

means that the temporary assignment is not required to be filled to satisfy

69

operating requirements, in the opinion of OPG, and represents a developmental

opportunity.

…

(Underlined emphasis added.)